In Civil Procedure I give an 8-hour take-home, typically
with one long multi-part issue spotter (worth most of the grade), a few
true/false (and explain why if false statements), and a theory question.

When I asked some of my former students I trusted to be honest to me if they had
encountered cheating at Harvard Law (and specifically on my exam) they told me
emphatically no, and in a back-handed compliment told me my exam was hard
enough to require so much of the eight hours they would think it would be very
risky to try to do this.

I certainly do not want to help people with “how-to”s on
cheating, but I told these former students
that if one was worried about this drawback, I could imagine telephoning a friend mid-way
through, comparing issues spotted on the issue-spotter and the true/falses, and
then getting back to work.

I am curious whether others have thought about these issues and what it has or has not motivated them to do.
Are your students cheating on take-homes? How would you know? Unlike other kinds of cheating (like copying) this form strikes me as hard to detect: among 82 students I suspect people often cluster on the issues they spot or do not spot) Should I be
thinking about moving to an in-class exam (which, I think, is for this course
pedagogically less good for my purposes) to avoid it?

ABA Committee Discusses Tenure Requirements and Law School Accreditation

An interesting article here. The gist: the ABA law school accreditation committee is looking at several alternatives to the current requirement that all ABA-accredited schools have a system of tenure or comparable security for full-time faculty.

I fail to see the point of the third alternative the committee is considering, which basically strikes me as a rent-seeking move by clinical faculty. But the second alternative seems like a reasonable move to me: "[T]o move away from any tenure requirement. Schools would afford all full-time faculty some form of security of position, but each would decide what system that would be. (The interpretation of the standard stipulates that schools at minimum must have a system of long-term renewable contracts of at least five years.) Schools could adopt different rules for different types of faculty."

Of course, the even shorter gist is probably accurately contained in the only comment currently posted on the NLJ story: "If you're betting on this question, bet on the ABA committee to avoid anything controversial. Really, bar association junkies, how often does any such committee do anything bold?"

Pennoyer = Lochner?

I just did my Civ Pro review and got several questions about what they need to know about or do with Pennoyer. Now I spend relatively little time (maybe 20 minutes) on Pennoyer, but everyone still seemed freaked out about what to do with this case that no longer is good law. After the session, I reminded one student that in Con Law (which is a fall course) they read and learned all the pre-New Deal cases, even though none really remains good law and even though they were not going to rely on it as the controlling law in their answers. But they learned it in order to understand how the law had changed and perhaps what some argue the law should return to being.

More On Counting: The Problem of Shady Statistics

The DC
Fire Department seems to have come up with an innovative way to reduce the
number of arsons and to improve its arson clearance rate (i.e., arsons that
result in an arrest). No new technologies, no new investigative techniques, not
even any additional investigators. It has simply redefined
arson.

The old
definition—which is apparently the one used by fire departments around the
country—counted any fire that had been deliberately set as an arson, while the
new definition requires “evidence of willful or malicious intent sufficient to
support an arrest….” The effect of this shift? The number of arsons dropped
from 154 in 2008 to 32 in 2012, and the clearance rate was nearly three times
what it would have been under the older definition (34% vs. 10%).1

In
this case, the nature of the change was so dramatic that it automatically calls
attention to itself. DC’s arson rate was just one-third the national average
for a city of its size. Maybe this was really the case—maybe the investigators
were really good and deterred a lot of arsons, or the populace was uniquely
disinclined to start fires—but it at least openly demands scrutiny.

Perhaps
the most egregious
example of such redefinitons took place in Chicago in 2010, when the police
commissioner attempted to counter rising murder statistics by breaking murder
into two categories, “indoor murders” and “outdoor murders,” arguing that the
police could only be held accountable for the latter. How, he argued, could the
police really prevent murders that take place away from the police?2
In one fell swoop, he cut the number of murders that his department was
“responsible” for that year from 138 to 98.

Other
problematic statistics, however, are harder to detect.

Consider
these examples from
David Simon (of Homicide, The Corner, and The Wire fame). In 1988, the Baltimore police cleared nearly 70% of
their murder cases, and the DA secured murder convictions in just over 80% of
its cases. Yet the probably of going to prison for murder was under 40%. How is
this possible?

For the
police, a case was cleared as soon as they made an arrest, even if the charges
didn’t stick. This isn’t unique to Bawlmer. This is how the Uniform Crime
Reports defines a clearance. An arrest is an arrest, even if it is a shoddy one that
ultimately goes nowhere.3

So the
police counted a clearance when they made an arrest, even if the DA as forced
to drop the charges before he could even get an indictment. But the DA
calculated his own clearance rate as the percent of cases for which there was
an indictment that resulted in conviction. Arrests that were dropped before
indictment? No effect on police stats, no effect on DA stats. These cases
simply disappeared between the two definitions. And there were enough of these
cases to drop the risk of conviction to 40%.

Starting
in 2011, a policy shift gave the DA sole power to charge murders, instead of
the police. So the DA charges only the cases that he is sure to win. As a
result, his clearance rate has remained high (if he charges, he will prevail),
prosecutions are way down—from 130 in 2010 to 70 in 2011—and the police
clearance rate has dropped into the twenties (since the DA declines to charge
any marginal case, even if the police have a viable suspect).

As
Simon points out, this is a dangerous precedent: due to the use of bad stats,
the police look bad and the DA looks great, but the source of the problem is
the DA, not the police.4 Yet it is hard for even a sophisticated
observer to catch what is going on here, much less a lay consumer.

And things
can get worse. Sometimes the very way data are (sincerely) gathered and
processed can make them unreliable in ways that are hard to detect. Numerous
researchers rely on county-level crime data from the UCR. But as Maltz and
Joseph Targonski point
out, problems with agencies not reporting consistent crime data makes
county-level data unreliable, but the problems are not immediately obvious.
Maltz and Targonski make this argument using John Lott’s and David Mustard’s
book, More Guns, Less Crime, as their
case-study, and one of their broader complaints is that most of MGLC’s critics attacked the methodology
while taking the data “as given.” But, they argue, we often need to look
closely at the data, since subtle problems lurk everywhere.

So what does
all this mean? There are a few key lessons to take away:

If nothing
else, this is a strong warning against casually running empirical models, a
growing problem in legal scholarship. Legal academics shouldn’t just get their
IT departments to install Stata on their computers, download some data, and
then start running some regressions. It
can take years to fully understand what a dataset looks like, what it is
really measuring, its strengths and weaknesses. People who just run some quick
regressions and then send them off to a law review are likely moving knowledge
backwards, not forwards, since the risk of bad results is too great.

Be wary of
big swings, like a city’s arson rate dropping rapidly in just a few years.
Don’t put too much weight on such results too quickly, and try to see if there
is any evidence that the definition has changed rather than the underlying
behavior.

The more
that is at stake, the more we should probe what the definitions are really
measuring. The pre-2011 problem in Baltimore was hiding in plain sight: I
imagine that the annual reports from the police and DA both defined how they
measured clearance rates, and once you have the definitions the problem is
clear. Murder is a big deal, so making sure we understand the definitions
clearly is important.

Perhaps most challenging,
these stories suggest that whenever possible, we should put much more weight on what many studies collectively say rather than the findings from any one study. But—critically—this works only if
the various studies all use different sources of data, gathered and defined by
different people. It is possible that all datasets will use the same problematic
definition: local police all use the UCR clearance measure, and (outside DC)
all fire departments measure arsons based on the definition in the National
Fire Protection Association handbook. In these cases, multisite results won’t
highlight problematic definitions, since all the sites are using the same definitions. But when we
don’t have this sort of centralization, then multiple studies can help us begin
to highlight games with statistics (like noting that DC’s arson rate is 1/3
that of cities of comparable size).

1There were apparently other shenanigans taking place as well. The
DCFD initially reported a clearance rate of 72.7%, but this was based on only a
partial number of months, with the revised full-year clearance rate dropping by
more than half to 34%.

2Lost in all the ado about his flagrant efforts to define away a
serious murder problem was the fact that the commissioner’s claim reflected an
implicit rejection of much of deterrence theory. Any sort of delayed
sanction—say, punishment after a lengthy investigation by the homicide bureau—was seen as having no
deterrent effect (which must have offended a number of homicide detectives). The commissioner was in effect arguing that only the
immediate presence of a police office could deter.

3Think about how the FBI’s definition of a clearance can influence
how police go about their jobs. Police are incentivized to simply make an arrest,
any arrest; their official stats do not reward the quality of the arrest. The
very act of creating a definition of what something is can change how people do
that something.

4There could be a long aside
here about what this scenarios tells us about the risk of relying on
highly-accountable, elected DAs, but this post is long enough as it is.

The FCPA Contra the ATS: in Conclusion

The best laid plans . .
. I might have liked to get a couple more posts in this month, but alas.
So let me conclude my series on the ATS vis-a-vis the FCPA with a few
quick thoughts.

First, I suggested in
prior posts that we should think of bribery (and corruption) as an inherent
human rights violation. Definitely some pushback there. But you
need not buy that claim to nonetheless see the FCPA as a rights tool. I
think we can all agree that bribery is very closely related to rights already
recognized in our international instruments: the right to equal
protection, to political representation, to self-determination, to food,
housing, and medical care, to education, to equal access to a country’s public
services, to safe working conditions, to the control of natural resources, and
indeed to the rule of law itself. If we want to keep corporations from
violating these rights, the FCPA is a pretty good way to go about it.

Comparing the FCPA to
the ATS, one may object that the former statute cannot really touch the
egregious violations that we’ve used the ATS to address, such as torture or
genocide. That’s probably true. But though the rights violations I
listed above are less egregious, they are also more pervasive and systematic,
touching the lives of the vast majority of the world’s population. I’d
suggest that this is every bit as meritorious a focus of our federal human
rights laws.

Finally, in terms of
statutory drafting, the FCPA is so many things that the ATS never was. It
provides a clear cause of action, supported by an accessible legislative
history. It rests on well-established common law principles of corporate
liability. Its claim to extraterritorial application is utterly
uncontroversial, Congress having clearly expressed therein its intent.
And as if this weren’t enough, FCPA enforcement has produced a robust
transnational culture of corporate compliance, almost certainly altering the
ways both US and foreign corporations conduct themselves overseas. Were
we to redraft the ATS we might use the FCPA as a sort of template. But of
course, that ain't gonna happen.

So instead, here's hoping that international law scholars might, in the
post-Kiobel world, more fully appreciate the potential of
anti-bribery law as a tool for deterring overseas corporate human rights
violations. And with that, I'll bid you adieu. Thanks for
listening.

Blackjack and Cognitive Enhancement

Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though many casinos eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits.

By contrast, if players use a device to count cards, like a smartphone, they have committed a serious crime. For example, several iPhone apps helps players count cards and at least one has a “stealth mode” that lets users surreptitiously enter data and receive feedback. In response, the Nevada Gaming Control Board issued an open letter reminding the public that using such an app when betting at blackjack violates the state’s antidevice statute which provides for up to 6 years imprisonment for a first offense. Somehow using a device to augment our abilities to remember and to calculate turns a perfectly legal activity into an offense with a very serious penalty.

The fact that we do not criminalize natural, unassisted card counting raises interesting questions of criminal and constitutional law: Could we criminalize natural card counting without violating fundamental principles that protect thought privacy? (Email me for a manuscript on that question.) In this recently published paper, however, I focus on a puzzle about technological enhancement. Namely, can we justify criminalizing device-assisted card counting but not unassisted card counting?

The importance of the question extends beyond the world of blackjack and casino gaming because it appears, at least superficially, that antidevice statutes criminalize a kind of technological enhancement. Some ethicists distinguish therapies that seek to return us to normal, healthy functioning from enhancements that promise to give us extraordinary abilities. People are often much more comfortable with therapies (e.g., drugs or devices to treat attention deficit disorder) than with enhancements (e.g., drugs or devices to give us better-than-normal concentration).

As a historical matter, casinos lobbied for antidevices statutes in the 1980s to protect their revenue as computers were becoming more popular and accessible. I focus on a deeper question: Is there any moral justification for permitting an activity, like card counting, when it uses only our natural abilities but severely punishing the activity when it is technologically enhanced? I consider a couple of possible justifications for the differential treatment and suggest that both are lacking.

Monday, April 29, 2013

Graham and the Problem of Predicting Lifecourse Offenders

Adam Liptak has a depressing piece up in today's New York Times about how states are respodning to the Supreme Court's decision in Graham v Florida, which declared life without parole sentences for minors unconstitutional. As Liptak explains, there are two contradictory ways to interpret Graham: under what I will call the Literal interpretation, LWOP is impermissible, but sentences that act like LWOP sentences in everything but name are okay; while under the Spirit (of the ruling) interpretation, ultra-long sentences are impermissible, whether we call them "LWOP" or something else.

Liptak's point is that many states are following the literal interpretation, giving minors covered by Graham sentences such as 95 or 100 years. Technically these are not life sentences, since the defendants could live for a long time (putting aside the fact that lifespans are shortened in prison and the current life expectancy for a 15-year old male is only 76.3). I feel like I am back in my 1L property class, learning about the Rule Against Perpetuities and debating about fertile octegenarians.

The following graph--I love graphs--which I have stolen from Robert Sampson and John Laub, shows the problem with the Literal interpretation:

This graph shows the likelihood of arrest by age over a person's life for several types of offenders. This comes from a longitudinal study of nearly 500 Boston youth that two sociologists, Sheldon and Eleanor Glueck, started in the 1940s. Other studies using different populations return similar patterns of lifecourse offending. The only departure from what I'm showing here was in a study (paywalled, alas) of 5,000 people in Holland, in which about 2% remained persistent, high-level offenders (at least with respect to property crimes) into their 70s.

This graph is a strong argument against persistently long sentences for juvenile offenders, since a vast percentage of people age out of crime.1 Why send an 18-year old to prison for 60 years if he is likely to quit offending in 12 or 15 years? Looking at that graph, even a 10-year sentence seems to run the risk of imposing more punishment on average than is needed.

The obvious rebuttal is "selective incapacitation": if we are good at predicting who will reoffend, we should lock those people up for long periods of time. In fact, the argument could go, the reason we see the declining age profile of offending may not less because people age out of crime, but because we are good at locking up persistent offenders, so as a cohort ages its offending propensity drops due to the removal of high-risk offenders to prison.

But this simply isn't the case. Empiricists cannot predict when someone is young which trajectory he will follow. So there is no reason to assume that courts, prosecutors, legislatures, etc., are getting it right.

Take Sampson and Laub's experience. They have data on offending for the each of the 500 men in the Glueck sample over his entire life; they look just at each man's juvenile data, try to create an predictive model to say which youth will follow which path, and then compare the actual outcome to the predicted. And two of the best scholars of the age-profile path of offending repeatedly fail. We simply aren't skilled enough yet to make these kinds of life-course predictions.

This failure isn't surprising. As the Dutch study indicates, only a small fraction of men are persistent, high-lifetime offenders. In such low-baserate situations, the risks of false positives are great. Here is a good summary of the base-rate fallacy, which basically warns that when baserates are low, then even highly-accurate tests--and we don't even have that here--are often wrong quite a lot more often than they are right.

Thus the long-term locking up of juveniles, given the general trends in desistance and our inability to identify persistent offenders in advance, seems to be a woefully inefficeint approach.

Of course, "woefully inefficient" isn't a Constitutional standard, so this is not to say that the Supreme Court should necessarily save the states from their own mistakes (although I personally think the brain-development argument banning long sentences for juveniles is compelling). But it is nonetheless depressing to see states continue to impose harsh sentences whose long-term deterrent/incapacitative effect is surely dwarfed by the long-run lock-up costs being imposed on future taxpayers.

1I'm making a utilitarian argument here. If your position is that from a retributive perspective, regardless of current brain development or future offending risk/behavioral norms, a murderous child deserves lifetime incarceration, then there is nothing I can say to dissuade you.

What is a Drug Crime? Part I

Before
I continue on about the causes of prison growth, it is worth pausing to ask
“what is a drug crime?” The official government statistics on which I’ve been
relying use a simple taxonomy: an inmate is classified by his most serious
offense. Violent crimes are classified as the most severe, followed by property crimes, then drug offenses, and finally "other" crimes. So a “drug inmate” is someone convicted of one or more drug
offenses, and possibly some “other” offenses as well.

This is perhaps a narrow definition of "drug offense," particularly if we are trying to estimate the effect of the war on drugs on incarceration. Consider a few other alternatives:

A murder resulting
from a shootout between two drug-dealing gangs over territory or some other drug
business issue. This will be classified as a violent offense, but it feels drug-related.

Pushing further, a murder resulting from a shootout between two drug-gang members as part of a power struggle following the incarceration of a high-ranking member of the gang which resulted in a power vacuum.

A robbery for drug money.

A robbery for drug money that is needed only because the war on drugs has likely increased the prices of drugs above what they otherwise would have been.

A robbery unmotivated by the need for drugs, but caused in part by the fact that prior low-level drug arrests, none of which led to incarceration themselves, led (or contributed) to a downward spiral—a
harder time landing a job, maintaining a relationship, etc., etc.—that
ultimately culminated in criminal behavior.

Should all these count as "drug incarcerations"?

A plausible argument can be made for each. But there are real costs to going down these routes as well.

First, if we are going to take a more comprehensive view of the drug war's costs, it is only proper to also account for its benefits as well—the war on drugs may be a net loss, but it still has some gross gains. So for every violent offender we reclassify as a "war on drugs" inmate, we'd need to somehow count the people who are not in prison because, say, the threat of arrest steered them to rehab and thus away from drug crimes, or the higher prices of drugs caused them to consume less (the demand for drugs is not unresponsive to price changes) and thus commit less violent crime, and so on. There may not be a lot of these people, but we need to estimate how many there are.

Second, we want to be careful not to retreat too far quickly to some sort of biological or sociological determinism, that the offender whose low-level marijuana convictions have made employment difficult is simply the victim of the drug war. Most unemployed people avoid lives of crime (I assume—I can't quickly find data on the percent of unemployed with criminal records), so at least for now1 it seems reasonable to impute some of the responsibility for the crime onto the offender. So the person who commits robbery to fund his drug habit is... what? 1/3 drug offender, 2/3 violent offender? How would we even begin to determine such a ratio?

And third, these classifications are much more subjective than the coarse taxonomy used in official statitsics. This is not, per se, a problem, just a limitation that needs to be acknowledged. Using a more nuanced definition comes at the cost of more debates over definitions, and the need to better model our uncertainty about classification. How do we really know why Mr. G committed this robbery? How can we be sure that in a different world without a war on drugs he would not have done so? We can make estimates, but we need to note the imprecision they introduce.

This
is not a problem unique to drug crimes. Consider “gang crimes.” The Chicago Police Department measures gang
activity by looking at “gang-motivated” crimes, which are crimes committed by a
gang member in furtherance of the gang’s interests. The LA County Sheriff’s
Department, on the other hand, simply looks at “gang-related” violence, which
is any crime committed by a member of a gang. The LACSD definition is more
objective, since all it requires is information on the offender’s gang
affiliation, not his motives, etc. The CPD definition seems to better capture
what concerns us with gangs, but leaves much of that information to subjective
assessments by law enforcement. How should the CPD classify a crime in which a
member of Gang A kills the girlfriend of a member of Gang B due in part to a love triangle gone wrong, but also in part due to escalating tensions over a turf war. And does our analysis change if the victim was a member of Gang B as well?

I’ll
stop here for now; I’ve likely crossed some sort of tl;dr line as it is. In one of my next posts, I’ll look at what the data can
tell us about the prior histories of those convicted of index offenses—if we
see evidence of lots of prior drug offenses, it would at least suggest that a
definition that looks only at current offense is missing something important
about the dynamics at play here.

1I actually find the hard determinism literature quite provocative—this is one of my favorite articles on the topic—but the hard determinists certainly have not proven their case yet, so it seems perhaps best to design policies that still rely on the assumption of free will, but to also remain open to the limitations of such a perspective. But this is material for a much different post.

Why I Decided to Construct a Free Online Casebook Available to Anyone for Civ Pro Using the H20 Platform

One of the nice things about tenure is that it frees you up to to do things you know are good for the world but may not be adequately valued in the tenure process. This summer I will embark on one such project, building a free online casebook for Civ Pro. I will be using the Harvard Berkman Center H20 "hack the casebook" platform. This great platform allows you to create "playlists" of cases and other materials that can be "remixed" by others, added to, etc. The initial goal of the project is to create a completely free H20 platform casebook for each of the firsy year classes, and I have stepped up to do Civ Pro.

Let me tell you a little bit about why I chose to do this because it may encourage others to join this great project or ones like it.

First, like others, I am shocked at how expensive textbooks have become for doctrinal 1L course. I realized that together my casebook and supplement (including the FRCP, major statutesm, etc) would cost my students $243 a piece and thus providing them with free materials would save at least $19,000 among my own students for next year. When multiplied over several years, as well as the possibility that other faculty would adopt this textbook and save their students money, this just seemed like a value creating proposition.In a time when students across the U.S. are struggling with the high price of legal education, I felt I should do what I could here.

Second, most of the materials I teach in my Civ Pro class are major Supreme Court cases (with a few Circuit and state court cases) that could be easily found and edited in public domain format, which the H20 platform makes easy. Just because of the way I teach my own course and the textbook I was using, I was already not assigning many of the notes that followed the cases and I was supplementing the book with additional materials (some written up by myself) so that the value the casebook was offering to my course that could not be found in the public domain was lessened. To be sure, I will still have to replace introductory sections of various parts of the book with my own write-ups as well as do editing of all the versions of the cases I will still use -- no small amount of effort -- but I might have felt differently about undertaking this if my casebook was doing more original work for me in the way I taught my course.

Third (and here I am purposefully not being specific and naming the casebook in question because, for all I know, all Casebooks in the field are similar in this regard): my casebook is more than 1200 pages long. I estimate that I use only about 300-450 of those pages in a 4 credit introductory course. It does have a compact addition for shorter courses, but unfortunately what it chooses to keep versus discard is not a good fit for what I use from the book. Before I decided to do the H20 version myself, I called the publisher of my casebook to see if I could "buy by the page" for the pages I actually use, a practice that some textbooks allow you to do. I was told I could not. Given that they have gone to the trouble of creating a "condensed" version I do not blame the authors/publishers, but this was the last straw for me in deciding to go it on my own.

This summer, along with my RAs, will be spent doing a beta version of the free H20 Casebook for Civ Pro that I will test out with my incoming 1Ls in the fall. I am incredibly grateful to Harvard Law School for allowing me to use my time (and RA time) for this project whose value will hopefully be externalized. I am particularly grateful to my dean, Martha Minow, since she is herself the co-author of a Civ Pro textbook (not the one I had been using), so she is basically authorizing the law school to fund a project that may cut into her own sales. She's just that kind of classy person! The beta version will be kept internal to my students for the fall, but if all goes well I hope to share it with the world in 2014 and perhaps others will want to adopt it.

Pigford

The New York Times on Friday ran a long and detailed story about, to put it simply, political- and profit-driven laxity and fraud in the payout of the settlement fund in the Pigford litigation alleging discrimination against black farmers in federal lending. The story is well worth reading. Once nice anecdote, among many (and yes, the story also provides real data), involves a speech given at a Baptist church in Little Rock by the head of something called the "Black Farmers and Agriculturalists Association," in which he boasts "that he and his four siblings had all collected awards, and his sister had acquired another $50,000 on behalf of their dead father." He concludes: "Let’s get the judge to go to work writing them checks! They have just opened the bank vault."

Two observations. First, as the story notes, the political and moral pressure that led to the substantial and often nonsensical payouts in the black farmers' case is also influencing parallel litigation involving women, Hispanics, and Native Americans. Here's an excerpt about the latter category of litigation, in which the Obama administration began settlement negotations in 2009 despite the fair prospect of victory if it had proceeded to ligitation:

Only 4,400 people filed claims, with 3,600 winning compensation at a cost of roughly $300 million. That left $460 million unspent — of which roughly $400 million under the terms of the settlement must be given to nonprofit groups that aid Native American farmers.

Ross Racine, the director of the Intertribal Agricultural Council, based in Montana, said his organization, with an annual budget of just $1 million, is perhaps the biggest eligible group. But many others are lining up to share the windfall, he said.

“Everybody is looking at this money on the table and saying, ‘Give me some because I am a good guy,’ ” he said.

The remaining $60.8 million will go to the plaintiffs’ lawyers, led by the Washington firm Cohen, Milstein, Sellers & Toll. In court papers, the firm argued that the size of the payment was justified partly by the fact that the settlement nearly equaled the maximum estimate of economic damages. Joseph M. Sellers, the lead counsel, acknowledged the unspent amount was unexpectedly big. But “absent a court order,” he said, “we don’t intend to return it.”

Second, I was curious about how legal scholars had treated this settlement. It's not my area, but I would assume that problems with this litigation and the settlement fund were or should have been well-known by anyone working in the field. Certainly, given the vagueness of the proof requirements, the political pressure to settle generously, the incentives of plaintiffs' lawyers, and the common use of distributions of massive amounts of money to public-interest groups as part of the buyoff process, it would be no surprise to anyone that both individual fraud and what we might call public interest graft are possible side-effects of such settlements, and this should be especially interesting to those working on reparations issues. My search of the literature was less than scientific, but for the most part the discussions I found were either neutral or positive, with little or no acknowledgment made of these potential problems. Nor have I seen much on the legal blogs yet about this story. I trust that the Civil Procedure & Federal Courts Blog and the Native American Law Blog, among other obvious sites, will take note of the story.

First Amendment on campus

Here are a couple of stories about the First Amendment on campus. Not trying to draw broad conclusions here, merely offering anecdotes.

The first occurred right here at FIU. The Beacon, the campus newspaper, reports on a class called "LGBT and Beyond: Non-Normative Sexualities in Global Perspective," whose assignments included marching in the Miami Beach Gay Pride Parade (the university entered a float). The article did not indicate whether any students objected to that assignment or how it was handled; one student is interviewed who opposes marriage equality, but it is not clear if he is in the class or has anything to do with the class.

Nevertheless, this sort of assignment raises some dicey issues, were anyone to object. While school curricula need not offer accommodations to students who object to particular assignments on religious grounds, is there a line when those assignments leave the bounds of the classroom and the course and venture into discussions, debates, and activities in the public at large? Alternatively, is there a difference between having to write a paper taking an objectionable position and having to participate physically in an activity that expresses that same position? And how should we handle internships and externships, which straddle the line between the classroom and the broader world and broader public discussion.

My wife teaches social work and encounters (either personally or in stories in the profession) these issues frequently. Social work imposes a code of ethics (to which social work students are expected to abide) requiring them to be educated about and understand "social diversity and oppression" with respect to every group or basis imaginable, which often is interpreted to mean students cannot opt-out of treating or working with objectionable groups or using methods with which they disagree. Most social work programs required courses in "diversity." And internships are a required, central part of social work education, so the issues potentially arise in and out of the classroom. So, for example, one public university settled a case with a student who was disciplined for failing to sign a letter in support of same-sex marriage that was going to be sent out publicly; the religious advocacy group that represented the student urged this class v. broader public line.

For some related thoughts, see this piece by Stanley Fish discussing a controversy at Florida Atlantic University (my neighbor just up I-95) over an assignment purporting to force students to stomp on a paper with Jesus's name or image. Fish mentions a case in which a Mormon theatre student at the University of Utah sued when forced to play a particular role in an acting class exercise that she alleged interfered with her religious beliefs.

The second story is from the University of Arizona, where a few students, led by a guy who calls himself "Brother Dean Samuel," counter-protested a Take Back the Night Rally with signs reading "You Deserve Rape" (a closer look at other of Brother Dean's expresion shows that he, not unlike Westboro Baptist, apparently hates everyone who isn't him). His signs received a large above-the-fold story in the Arizona Daily Wildcat, which Brother, of course, gleefully retweeted. There was a tepid statement from the university that the speech is protected and he "has yet to, at this point, violate the student code of conduct."

Actually, the most anger was directed towards the Daily Wildcat for reporting on Brother Dean and giving him the forum he is looking for and would not get, or warrant, otherwise. The paper responded, basically emphasizing the obligation to report bad or unhappy news, the importance of Brandeisian counter-speech, and the fact that ignoring a problem does not make it go away (comparing, e.g., Westboro Baptist, bullying, and Jim Crow). Fair enough as to the Brandeisian point, I suppose. But the third point seems flat wrong, at least as applied to this situation, because their analogies are inapt. In terms of ignorability, there is a fairly obvious difference between an unjust soci0-political system that wields actual political power and negatively affects people's lives and one schmuck who wants to hear himself spout stupid ideas. Reporting on and publicizing the latter, and helping him reach a broader audience with his absurd thoughts, actually gives him power he would not otherwise have. This is not to suggest the paper was wrong to publish the story, but only to suggest that it is not as simple as their statement suggests.

Also, if the idea is to encourage counter-speech, the paper's approach is arguably counter-productive. Suppose a group of students is trying to decide whether to counter-protest. Under the paper's logic, the counter-protest makes this a large Page-1, above-the-fold "story," resulting in greater coverage and dissemination of Brother Dean's stupidity. So perhaps the better approach is for the counter-speakers is to stay home, avoid "creating" a story, and allow Brother Dean to remain ignored, by them and the paper.

Third, back at FIU. I spent this year working on a university committee, lead by the university's general counsel, to make recommendations about new regulations for on-campus demonstrations, in the wake of some conflicts that arose with Occupy here and on other campuses, notably UC. It was a fun experience. But I came away from it convinced of the need to include in undergrad orientation some discussion and education on the role of the First Amendment, public demonstrations, and civil disobedience, particularly on a college campus. Which our students could use. "Freedom of speech is a privilege"? Yeah, a teach-in on the First Amendment may be a good idea.

Sunday, April 28, 2013

Akhil Amar and the Historical School

Among the many late-nineteenth century scholars who stressed the role of evolving custom in constitutional law, only [Christopher] Tiedeman devoted an entire book to this subject. In The Unwritten Constitution of the United States, published in 1890, Tiedeman stressed that "the great body of American constitutional law cannot be found in the written instruments, which we call our constitutions." Rather, it is "unwritten" in the legal sense of that term, "to be found in the decisions of the courts and the acts of the National and State legislatures, constantly changing with the demands of the popular will." While maintaining that the constitutional understandings of the people are more important than those of the framers, Tiedeman stressed that these popular understandings change over time. "The present popular will," not the will of those who either framed or voted for the Constitution, "must indicate which shade of meaning must be given to the written word." . . . . Tiedeman emphasized throughout his book that "all political constitutions undergo a constant and gradual evolution, keeping pace with the development of civilization, whether there be a written constitution or not." He added that "these changes generally take place without formal amendments to the written constitution." Rather, they evolved through what he called the "unwritten constitution." (349)

Has anyone ever classed Professor Akhil Amar as a contemporary member of the historical jurisprudential school? I haven't seen this particular association made before, but perhaps others have. Amar's unwritten constitutional sources in the book are more numerous than Tiedeman's, to be sure (and they emphasize the popular will less), but the overarching structure of the arguments from unwritten constitutionalism seemed similar to me.

Friday, April 26, 2013

Replies to the Organ Conscription Trolley Problem

Yesterday, I argued for more aggressive efforts to boost the supply of cadaveric organs available for transplant: If an out-of-control trolley were heading toward a living person strapped to the tracks, we surely ought to divert it to another track, even if doing so will crush a corpse along the alternate path. If we are permitted to crush a corpse when it's the only way to save a life, even if the family of the deceased doesn't want us to, then we can recover organs from the deceased when the invasion is fairly minimal (it won't interfere with burial) and the gains are not one life but several. I emphasized an important qualification, however: we are not permitted to just take organs when we can obtain consent with less invasive approaches, like offering financial or priority incentives.

Commenter SG raised questions about whether trolley problems do a good job of testing our intuitions. There is certainly a lively debate about the reliability of trolley problem intuitions and the reliability of moral intuitions more generally. Despite pitfalls, I believe trolley problems can help us abstract away morally irrelevant considerations. A family considering donation, for example, doesn't know whose lives are in the balance. But we know that as a matter of policy, many lives end prematurely because lifesaving organs are wasted. Therefore, the trolley problem I posed helps us removes distractions and confront the loss of life more directly.

Commenter Mitch proposed a variation: Suppose the deceased on the alternate track is your recently-deceased loved one. I have two replies: First, we need not frame the problem that way in order to draw conclusions about organ donation policy. The destruction of the corpse will be very upsetting to the family, but when we decide public policy, we typically abstract away from who our particular loved ones are. It would bias my hypothetical to stipulate that the living person is your relative, and it would bias the opposite way to assume the deceased was.

Second, even if the trolley problem were posed in this fashion, you should still flip the switch if it's the only way to save a living human. (Perhaps families should be excused from blame given that they must decide under pressure while grieving, but that's another matter). Interestingly, medical examiners frequently conduct autopsies in which consent is irrelevant. Some of these investigations may save lives by preventing murders. But organ donation is plausibly much more lifesaving than medical investigation.

One last point: It's easy to think that our choices are to give up our organs or have them stay intact forever. Perhaps mandatory autopsies are viewed as different than conscripted donation because autopsies do not involve a prolonged "using" of someone's organs. But the "using" happens either way. Your organs can be taken over by bacteria and insects or they can go to save living people. If we were better able to come to terms with such unpleasant facts, we'd more effectively save and heal the living.

What Happened to Occupy?

The Financial Times has a well-done roundup review of several books about the Occupy Wall Street movement, mostly by people involved in it. The short version: "A sympathetic reader of these books will end up with the slightly exasperated feeling that Occupy wasted its chance as a political movement." A couple of observations:

1) Past Prawfs guest Bernard Harcourt of Chicago appears in the review, with a quote from his essay in one of these collections. This is just a guess, but when the dean at the University of Chicago Law School sent a memo to the faculty urging them to assist the efforts of its students and recent graduates to occupy Wall Street, I doubt this is what he had in mind.

2) I love this quote from Michael Taussig, a Columbia anthropology prof who also wrote an essay for a collection. As the review puts it, "Taussig hails the coming together [in Zucotti Park] of a 'community defining itself through a new language and sense of collective': this, he reflects, is a problem for politicians and experts who 'want to channel the messianic and transgressive impulse into their own need for pathological fame and power'." The use of "pathologicial" is especially nice here; why let people think for themsevles when you can just insert a pseudo-diagnostic adjective? But I would have thought that politicians and experts who wanted to pursue fame and power would have been delighted by the Occupy movement.

3) There are probably lessons in here for the popular front of the law school reform movement.

Thursday, April 25, 2013

Some More Evidence Against the War on Drugs Hypothesis

I
started my previous post with a graph showing the steep rise in the total
prison population. So I want to start this one with a graph showing the steep
rise—and then the sudden plateau, and then the decline—in the share of
prisoners in prison on drug charges.

Two
things jump out on this graph. First, after a rapid rise the percent of drug offenders peaks at 21.8%, in 1990. Second, from 1990
forward the fraction steadily declines, with only a few upticks here and there, to 18.4% in
2008; by 2009, it was down to 17.8%. In other words, in 1990, nearly 80% of all
prisoners were non-drug offenders, and by 2009 that percent had risen to more
than 84%. And almost all of these other inmates are serving time for violent or property offenses.

Adding
in the federal system, which is much more drug-focused—about half of all
federal prisoners are serving time for drug crimes—does not change numbers or trends much: 24.1% in 1990, 22.1% in 2009. This is unsurprising: despite the extensive
(in fact, quite excessive) attention it receives from legal academics, the
federal system held only 13.5% of all prisoners in 2011, and until the 2000s it
wasn’t even the largest prison system in the country, lagging behind California.

In
short, as I’ve noted before, there simply aren’t “enough” drug offenders in
prison for the drug-incarcerations-drive-prison-growth story to hold. Yes, in both relative and absolute numbers there are a lot more than
there were before the incarceration boom, but not so many that they can be seen
as the primary engine of prison growth.

But I
can make the case for the relative unimportance of drug incarcerations even
more precisely. The table below reports the number of violent, property, drug,
and other offenders in 1980 and 2009 in state prisons.

1980

2009

% Change

% Contribution

Total

294,000

1,362,200

363%

NA

Violent

173,300

724,300

318%

52%

Property

89,300

261,200

192%

16%

Drugs

19,000

242,200

1,175%

21%

Other

12,400

134,500

985%

11%

Between 1980 and 2009, state prisons added 1,120,200 prisoners, and of these 551,000—or 52%—were convicted of violent offenses. Increase drug incarcerations explain only 21% of the growth.

Of
course, there are multiple ways to spin this table—counting
is hard. One version is that 68% of the growth in prison came from
incarcerating people for index offenses. Another version is that 48% of the
growth came from locking up non-violent (i.e., property, drug, and other)
offenders. Assuming, of course, that none of the property and drug offenders
were actually arrested or even charged with violent crimes but struck plea
bargains that dropped the violent offense.

But
either way, the table deals a solid blow to the
drug-incarcerations-drive-prison-growth thesis.

This is a
graphic example of why it is always essential to pay attention to baserates: the percent increase in drug
commitments has been huge because the initial level was so low. Thus the
overall contribution of increased drug commitments to the increase in total
prison population (21%) is not nearly as large as the percent change in drug
incarcerations (1,175%) alone might suggest. It seems counterintuitve that drug incarcerations could grow almost four times as fast as violent incarcerations yet be less than half as important, but such is the nature of baserates.

Drug commitments were the fastest growing segment, but not the most important segment.

We see
this elsewhere in the prison debates as well. Consider, for example, female prisoners. We used to hear that women had
become the fastest growing population in prison. This is not surprising at all—in fact,
the opposite effect would be quite unexpected. In 1990, there were 44,065 women prisoners in a
system with 743,382
prisoners; in 2010,
there were 105,200 women in a system with 1,544,200 prisoners. Thus the number
of women prisoners grew by 139%, compared to 106% for men. Yet of the 800,818
prisoners added between those years, 739,683—92.4%!—were men. Rates of growth
can be deceptive if the populations start from different bases.

Again,
this is not to say that drug arrests and incarcerations have played no role in prison growth, or
that rolling back the War on Drugs will have no effect on incarceration. But it
does suggest that whatever effects there are will be indirect and complicated.
A simple policy of drug decarceration will not yield the returns that many
think.

On Corporations and Pine Cones

I can vividly recall first reading John Locke as a freshman undergrad. His state of nature conjured up images in my mind of people running around in the forest, trying to steal each other’s stuff. I should be embarrassed to admit it, except that my professor’s understanding was not much better. He criticized Locke and his followers on the grounds that the state of nature “never existed;” turns out, we were both wrong.

One realizes that the state of nature exists wherever governments wield illegitimate power. Civil society exists only where government rules in accordance with standing laws, duly promulgated and known to the people, and directed to their good. Where officials rule otherwise, we become subject to what Locke called “the inconstant, uncertain, arbitrary will of another” and the social contract is destroyed. Our right to that liberty which can only be known in civil society is violated, and humankind returns to the state of nature.

The bribing of government officials does precisely that. And so I want to argue that corporate bribery is a rights issue. Where corporations bribe officials to win contracts over more competitive bidders, or to import goods in violation of customs laws, or to circumvent environmental or safety regulations, they have violated (or aided and abetted in the violation of) human rights.

Still with me? If you are, then you believe that the Foreign Corrupt Practices Act is a rights statute -- it criminalizes conduct that violates (or aids and abets in the violation of, if you prefer) human rights. We don't generally think of it that way (or enforce it that way), but we should.

And if you’ve come with me this far, then you’re ready for my next question: has the FCPA done more to deter overseas rights violations by corporations than the ATS ever did or could? We'll explore that outlandish notion next post.

The Organ Conscription Trolley Problem

Yesterday, Glenn discussed paying people to donate nonessential organs while they are alive. I will argue that we ought to more aggressively incentivize organ donations from the recently deceased.

Imagine that an out-of-control trolley is heading toward an innocent person who is for some reason strapped to the trolley tracks. You happen to be standing near a switch that can divert the trolley to a different track and represents the only available means of saving the person. Here's where this trolley problem gets much easier than others you've seen: If you divert the trolley, it will unavoidably crush the body of an already-deceased person who is strapped for some reason to the diversion track. Are you morally permitted to flip the switch to save a life when doing so will crush a deceased person? Clearly you are. Indeed, you are morally obligated to do so.

What if the family of the deceased is standing nearby and urges you not to, pleading that if their loved one's remains are crushed, it will interfere with his religious preferences about burial? No matter how much it upsets the family and would have upset the deceased, you are permitted to divert. Now what if diverting would save not one life but six or seven? And what if the trolley wouldn't crush the deceased beyond recognition but would merely cause some internal change that would be invisible at burial? Surely the answers only become easier.

If you've answered as I have, we should be permitted to take the organs from the recently deceased when doing so represents the only way of saving the six or more people who need those organs to survive. Does this mean we should implement a routine salvage program where people must donate if they die with organs available for transplantation? Not necessarily. There may be financial or priority incentives that will induce sufficent donation such that we don't have to go so far as to conscript lifesaving organs. But our current practices cause far too much unnecessary death and misery. See here and here for more.

Wednesday, April 24, 2013

On Policy and Plain Meaning in Copyright Law

As noted in my last post, there have been several important copyright decisions in the last couple months. I want to focus on two of them here: Viacom v. YouTube and UMG v. Escape Media. Both relate to the DMCA safe harbors of online providers who receive copyrighted material from their users - Section 512 of the Copyright Act. Their opposing outcomes illustrate the key point I want to make: separating interpretation from policy is hard, and I tend to favor following the statute rather than rewriting it when I don't like the policy outcome. This is not an earthshattering observation - Solum and Chiang make a similar argument in their article on patent claim interpretation. Nevertheless, I think it bears some discussion with respect to the safe harbors.

For the uninitiated, 17 U.S.C. 512 states that "service providers" shall not be liable for "infringement of copyright" so long as they meet some hurdles. A primary safe harbor is in 512(c), which provides exempts providers from liability for "storage at the direction of a user of material that resides on a system" of the service provider.

To qualify, the provider must not know that the material is infringing, must not be aware of facts and circumstances from which infringing activity is apparent, and must remove the material if it obtains this knowledge or becomes aware of the facts or circumstances. Further, if the copyright owner sends notice to the provider, the provider loses protection if it does not remove the material. Finally, the provider might be liable if it has the right and ability to control the user activity, and obtains a direct financial benefit from it.

But even if the provider fails to meet the safe harbor, it might still evade liability. The copyright owner must still prove contributory infringement, and the defendant might have defenses, such as fair use. Of course, all of that litigation is far more costly than a simple safe harbor, so there is a lot of positioning by parties about what does and does not constitute safe activity.

This brings us to our two cases:

Viacom v. YouTube

This is an old case, from back when YouTube was starting. The district court recently issued a ruling once again finding that YouTube is protected by the 512(c) safe harbor. A prior appellate ruling remanded for district court determination of whether Viacom had any evidence that YouTube knew or had reason to know that infringing clips had been posted on the site. Viacom admitted that it had no such evidence, but instead argued that YouTube was "willfully blind" to the fact of such infringement, because its emails talked about leaving other infringing clips on the site - just not any that Viacom was alleging. The court rejected this argument, saying that it was not enough to show willful blindness as to Viacom's particular clips.

The ruling is a sensible, straightforward reading of 512 that favors the service provider.

UMG v. Escape Media

We now turn to UMG v. Escape Media. In a shocking ruling yesterday, the appellate division of the NY Supreme Court (yeah, they kind of name things backward there) held that sound recordings made prior to 1972 were not part of the Section 512 safe harbors. Prior to 1972, such recordings were not protected by federal copyright. Thus, if one copies them, any liability falls under state statute or common law, often referred to as "common law copyright." Thus, service providers could be sued under any applicable state law that protected such sound recordings.

Escape Media argued that immunity for "infringement of copyright" meant common law copyright as well, thus preempting any state law liability if the safe harbors were met.

The court disagreed, ruling that a) "copyright" meant copyright under the act, and b) reading the statute to provide safe harbors for common law copyright would negate Section 301(c), which states that "any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067." The court reasoned that the safe harbor is a limitation of the common law, and thus not allowed if not explicit.

If this ruling stands, then the entire notice and takedown scheme that everyone relies on will go away for pre-1972 sound recordings, and providers may potentially be liable under 50 different state laws. Of course, there are still potential defenses under the common law, but doing business just got a whole lot more expensive and risky to provide services. So, while the sky has not fallen, as a friend aptly commented about this case yesterday, it is definitely in a rapidly decaying orbit.

Policy and Plain Maining

This leads to the key point I want to make here, about how we read the copyright act and discuss it. Let's start with YouTube. The court faithfully applied the straightforward language of the safe harbors, and let YouTube off the hook. The statute is clear that there is no duty to monitor, and YouTube chose not to monitor, aggressively so.

And, yet, I can't help but think that YouTube did something wrong. Just reading the emails from that time period shows that the executives were playing fast and loose with copyright, leaving material up in order to get viewers. (By they way, maybe they had fair use arguments, but they don't really enter the mix). Indeed, they had a study done that showed a large amount of infringement on the site. I wonder whether anyone at YouTube asked to see the underlying data to see what was infringing so it could be taken down. I doubt it.

I would bet that 95% of my IP academic colleagues would say, so what? YouTube is a good thing, as are online services for user generated content. Thus, we read the statute strictly, and provide the safe harbor.

This brings us to UMG v. Escape Media. Here, there was a colossal screw-up. It is quite likely that no one in Congress thought about pre-1972 sound recordings. As such, the statute was written with the copyright act in mind, and the only reasonable reading of the Section 512 is that it applies to "infringement of copyright" under the Act. I think the plain meaning of the section leads to this conclusion. First, Section 512 refers to many defined terms, such as "copyright owner" which is defined as an owner of one of the exclusive rights under the copyright act. Second, the copyright act never refers to "copyright" to refer to pre-1972 sound recordings that are protected by common law copyright. Third, expanding "copyright" elsewhere in the act to include "common law copyright" would be a disaster. Fourth, state statutes and common laws did not always refer to such protection as "common law copyright," instead covering protection under unfair competition laws. Should those be part of the safe harbor? How would we know if the only word used is copyright?

That said, I think the court's reliance on 301(c) is misplaced; I don't think that a reading of 512 that safe harbored pre-1972 recordings would limit state law. I just don't think that's what the statute says, unfortunately.

Just to be clear, this ruling is a bad thing, a disaster even. I am not convinced that it will increase any liability, but it will surely increase costs and uncertainty. If I had to write the statute differently, I would. I'm sure others would as well.

But the question of the day is whether policy should trump plain meaning when we apply a statute. The ReDigi case and the UMG case both seem to have been written to address statutes who did not foresee the policy implications downstream. Perhaps many might say yes, we should read the statute differently.

I'm pretty sure I disagree. For whatever reason - maybe the computer programmer in me - I have always favored reading the statute as it is and dealing with the bugs through fixes or workarounds. As I've argued with patentable subject matter, the law becomes a mess if you attempt to do otherwise. ReDigi and UMG are examples of bugs. We need to fix or work around them. It irritates me to no end that Congress won't do so, but I have a hard time saying that the statutes should somehow mean something different than they say simply because it would be a better policy if they did. Perhaps that's why I prefer standards to rules - the rules are good, until they aren't.

This is not to say I'm inflexible or unpragmatic. I'm happy to tweak a standard to meet policy needs. I've blogged before about how I think courts have misinterpreted the plain meaning of the CFAA, but I am nevertheless glad that they have done so to reign it in. I'm also often persuaded that my reading of a statute is wrong (or even crazy) even when I initially thought it was clear. I'd be happy for someone to find some argument that fixes the UMG case in a principled way. I know some of my colleagues look to the common law, for example, to solve the ReDigi problem. Maybe there is a common law solution to UMG. But until then, for me at least, plain meaning trumps policy.

Some Thoughts on Counting Terror, and Counting in General

This map of terror incidents across time
and space in the United States (discussed more in detail here) is simultaneously fascinating and mind-boggling:

(This is only a screenshot: my efforts to embed the video itself failed miserably.)

It is
impossible to look at this map and not immediately ask: “What exactly is a terror attack?” According to the
research group at the University of Maryland that produced the map, “terror”
is:

The
threatened or actual use of illegal force and violence by a non-state actor to
attain a political, economic, religious, or social goal through fear, coercion,
or intimidation….

Now that
obviously can’t be entirely true. By this definition, every drive-by gang shooting would be an act of terror: a non-state actor using
intimidation to secure economic gains. Arguably any act of domestic abuse,
particularly in a semi-public or public place, could likewise be seen as an act
of terror, since it represents an effort to use fear to advance a social goal
(keeping women in a second-tier position). And so on. Simple armed robbery? Seems to fit.

I think this
map provides a clear example of a problem all too rarely discussed in statistics
and the quantitative social sciences: no matter how hard we try make our models “objective,” at the end of the day the numbers we use in them are almost always quite subjective. Their "numberness" makes them seem objective, but they are not. And we need to either (1) openly note the underlying political/legal/moral
assumptions that drive our numbers or—and this is my preferred option—(2) attempt to model more explicitly how
our results vary with different political/legal/moral assumptions.

In other
words, there is no “objective” definition of terror, thus any measure of it we make
will always be inherently political. If nothing else, note that the federal government uses
a different definition than the one that undergirds this map: most tellingly,
the federal definition drops
“economic” from the justifications. Change the definition, change the results.

We see this
in lots of situations. Illinois, for example, did not provide rape statistics to the
Uniform Crime Reports for years because Illinois has used a different, broader
definition of rape than the federal government. Or think about poverty: an income of $11,490 is poverty
for one person, $15,510 for a family of two, and so on by $4,020 increments up
the chain. That can’t be objectively “true”: why not increments of $5,020? Why
not a baseline of $13,000?* Even murder: if you’re counting murder, should you
count cases where someone kills another in self defense? Ostensibly, the person
is still guilty of murder but has an affirmative defense. It may make sense to
exclude that from a study of what-we-think-of-as-murder, but that’s a normative
call.

Yet social
scientists almost never wrestle with these issues. We use the UCR’s rape or
murder counts without asking if they really measure what we care about. And we
insert “percent in poverty” into regressions all the time without carefully thinking
about the host of normative and political decisions that go into that
percentage and, more important, without thinking about whether those explicit
and implicit assumptions are consistent with the research projects we are
engaged in.

Sometimes
our hands are tied: whoever gathers the statistics gathers them in a particular
way, and it would be prohibitive to regather it ourselves. If the UCR excludes
justifiable homicides from its murder stats, it is almost impossible for me to
go back and collect that data myself. But sometimes it is laziness: poverty
statistics are calculated from the CPS, and that is freely
downloadable. I could compute my own poverty percentages if I wanted, but it
would take time and energy, but it would force me to think more critically
about what exactly I am measuring.

Yet even if it
is impractical or inconvenient to recalculate the data, there are still steps
we can take to better acknowledge the inherently normative content of the
numbers we use. The first, and to me less appealing, appoach is to simply be more open about
exactly what normative assumptions we—or the third party who gathered the
data—are making when we arrive at the numbers in the data, and to defend those
assumption.

But if the
definition is ultimately normative or political, it really can’t be defended in
any objective way: we choose it because we believe it, but we can’t “prove”
that we’re right. Just like a utilitarian can’t “prove” a retributivist wrong
and vice versa. That's what makes a "political" or "normative" issue political or normative in the first place.

So the
second, more appealing, approach is to model much more explicitly what turns on
various political choices. Take the terror map. I would have loved to see three
maps in a column, each showing the progression of terror attacks over time in
sync, but using different definitions of terror. This would illuminate just how
important the normative calls are, or perhaps for what questions they matter.

Stick with
the terror example. Assume we all agree that Oklahoma City, 9/11, and a few
other major events count as “terrorism.” Then it could be that our definition
matters a lot for the number of terrorist events but is relatively unimportant
for measuring the total number of terror-related deaths (since the clear-cut
cases are few in number but dominate when it comes to human cost). So depending on what you are trying to count, the choice of definiton may be more or less important. That's really useful—essential—to know.

Yet we so
rarely see this. The dominant approach is to pick a definition, perhaps—but
generally not—defend it, and then treat it as the “right” definition, or at
least the “best we can do” definition. But the fact that this is standard
practice doesn’t mean it is the right way to go; it clearly isn’t. We need to
acknowledge more openly the inherently political and normative nature of what
we do, and we need to model much more honestly just how much turns on these
normative and political choices.

And
consumers of empirical work need to take care not to view the numbers in an
empirical model as being perfectly objective measures of the phenomenon under
question, at least most of the time. Perhaps if we want to measure “the total number of people
in the room,” then an enumeration pulls that off in a purely objective way:
either there are 10 people in the room or 11, and I don’t think we’ll fight
over how to define “people” (but if I had said “adults”…?). But note that if we want “the
total number of people in the country,” a number equally objective in theory and one that lacks the normative
ambiguity of “poverty” or “murder” or “terror,” we face the fact that the
decision to count rather than sample will produce different estimates. Unacknowledged subjectively lurks in almost every model; sometimes it matters, sometimes it doesn't, but the fact that it is never discussed is deeply troubling.

* Even worse, the poverty scheme was
developed in the 1960s, and the only adjustment made to it since then is for
inflation. So the standard seems likely to be out-of-date.

Transplant Tourism: Hard Questions Posed by the International and Illicit Market for Kidneys

The Journal of Law, Medicine, and Ethics has just published an article by me on transplant tourism, that discusses the burgeoning international market for buying and selling kidneys. I review the existing data from Pakistan, Bangladesh, and India, which is pretty deplorable. As I show the vast majority of these sellers are poor and using the money (which is a significnat sum in terms of what they earn, even though in the end only 2/3 is paid) to try to buy themselves out of bonded labor, pay off familial debts, or try to mount a dowry. Many are misinformed or decieved about the health consequences for them and the needs of the person who will receive their kidney. Once they have agreed to sell they are often pressured not to renege. They are often released too soon post-transplant compared to what is optimal for a transplant, and their self-reported health post-transplant is worse. Many experience significant social stigma as a "kidney man" (or woman)and the 20-inch scar (the more expensive way of doing the procedure would reduce the scar size) marks them for life and makes it difficult for them to marry. Most express significant regret and would advise others not to undertake the operation.

Despite these grave facts, as I argue in the paper (and in greater depth for many of these arguments in the chapter on transplant tourism in my new book on medical tourism under contract at Oxford University Press), many of the traditional justifications from the anti-commodification literature -- arguments relating to corruption, crowding out, coercion, and exploitation -- do not make a convincing case in favor of criminalization. If a ban is justified, I argue the strongest arguments are actually about defects in consent and justified paternalism, on the assumption that criminal prohibition is a second best regulation in the face of the impossibility of a more thoroughly regulated market.

I then examine what means might be used to try to crack down on the market if we concluded we should. I evaluate possibilities including extraterritorial criminalization, professional self-regulation, home country insurance reimbursement reform, international criminal law, and of course better organ retrieval in the patient's home country.

I will keep writing on this topic, including for my new book, so even though this paper is done feel free to email me your thoughts.

Setting the Stage: The Explosion in Prison Populations

The graph
below never ceases to amaze, no matter how many times I look at it.

The
explosion starting in the mid-1970s was unprecedented in American history or
world experience. And it came out of the blue. In one of the worst-timed
articles in criminology, Alfred Blumstein, one of the nation’s most prominent
criminologists, wrotein 1979 that:

The
existence of such a stable imprisonment rate suggests that, as a nation’s
prison population begins to fluctuate,
pressure is generated to restore the prison population to that stable
rate.

Not exactly. Today,
the US is home to about 5% of the world’s prisoners population, but nearly 25% of its
prisoners. Our prison-and-jail incarceration rate* of 756 (in 2011) is the highest in the world. The countries filling out the top ten (in
descending order) are Russia, Cuba, Belarus, Belize, Georgia (the country—the
state has a higher rate), Kazakhstan, Suriname, South Africa, Botswana, Israel,
Ukraine, and Chile; Russia’s rate of 629** putting it in the number 2 slot.
If we are known by the company we keep, we should be worried. European
countries outside of the former Warsaw Bloc states all have incarceration rates
in the 100s, as does China (and Saudi Arabia).

Like all
zombie ideas, the claim linking the War on Drugs to this explosion has some
facial plausibility. The surge in incarceration and the War on Drugs started
around the same time (if you use the Reagan Administration, not the Nixon one,
as the starting point for the War on Drugs). And between 1980 and 2009, the
number of prisoners incarcerated on drug offenses rose by approximately 1,175%!

But
like with all zombies, cracks in the
argument become quickly apparent. Take the 1,175% number. In 1980, there were 19,000 drug inmates in state prison, a number which soared to 242,200 in 2009. And yes, that means there are
more people in prison today for drug crimes than were in prison in 1972 for all crimes (around 200,000).

But in
2009, there were over 1.36 million people in state prison. And 242,200 is only 17.7% of
1.36M. So a lot of non-drug offenders were added to prison during those years,
too—a lot more, in fact, than drug offenders.

Adding in the federal system—which is much more heavily focused on drug offenders, who comprise nearly 50% of its inmates—does not change the analysis much. Including the federal numbers, 337,405 prisoners out of 1.52 million, or 22.2% of all prisoners, were serving time for drug offenses.

Consider
the following thought experiment. What would US prison populations in 2009 look
like if in 1980 we released all 23,900 prisoners serving time for drug offenses (the 19,000 state prisoners plus 4,900 federal drug inmates) and proceeded to admit no prisoners for drug crimes in the subsequent years?
Instead of rising 3.8-fold, it would have risen 3-fold. A difference, but not an enormous one. (I’ll show my work for these numbers shortly in a future post.)

In other words, we would have had our unprecedentedly vertiginous prison population even without the increase in drug incarcerations. Liberate all drug offenders from our prisons and jails, and our global rank would, at best, drop all the way to... number 2. Maybe number 3. Slightly less punitive than Russia, maybe Cuba.

So a simple look at just a handful of easy-to-find numbers—the total number of prisoners, the total number of drug offenders—and the blame-the-war-on-drugs claim already starts to fall apart. There simply are not enough drug offenders in prison for them to be doing much heavy lifting.

* My
focus here is on prisons alone, since jail populations are less well measured
and are more substantively heterogeneous: prisons are for convicted felons
sentenced to at least a year or more of incarceration, while jails hold offenders
(generally misdemeanants) serving sentences of less than a year and those being
held awaiting trial. Jails also have much higher turnover rates (such as people spending a few days before making bail), making it hard to understand what exactly a one-time population count actually tells us. The international statistics, however, only report the
aggregate prison-and-jail rates, likely because not every country divides its system the way the US does.

** Thus the difference between our incarceration rate and Russia's is equal to or greater than the total incarceration rate of most Western European countries (~ 100 per 100,000).

Animal cruelty law rejected

Following SCOTUS' 2010 decision in United States v. Stevens invalidating a federal statute prohibiting "animal crush videos," Congress responded with the Animal Crush Video Prohibition Act of 2010, which I wrote about here and here. The key to the new version was that Congress defined animal crush videos as prohibiting certain depictions of animal cruelty that are obscene, attempting to shoehorn this speech into an existing category of unproteced speech.

Last week, Judge Lake in the Southern District of Texas held that the new statute is still unconstitutional, dismissing the first prosecution under it. Judge Lake rejected the two government arguments in support of the statute: 1) that it regulates already-unprotected obscenity (the videos are not obscene because, while patently offensive, they do not depict sexual conduct, as required under Miller) and 2) that it is justified to dry up the market in animal cruelty (the court emphasized the narrowness of this rationale outside child pornography and videos depicting conduct that is inherently and always unlawful). The law therefore was a content-based regulation subject to strict scrutiny, which it did not survive.

Curious to see if the government appeals or just waits to try again with a different prosecution in a different court.

Tuesday, April 23, 2013

"The Blogger as Public Intellectual": A fun conversation with Paul Horwitz

Notre Dame's Institute for Advanced Study is hosting this week an interesting conference on "public intellectuals" and, this morning, the featured paper was from our own Paul Horwitz, whose topic was "The Blogger as Public Intellectual." (For one blogospheric reaction to his presentation, go here.) Paul was, as per usual, interesting and thoughtful, and I hope he'll post his paper, or a summary of it, soon.

I was the "commenter" (or "commentator"?) who followed Paul and I spent most of my time talking about and reflecting on my experience with my "other" blog, "Mirror of Justice." And, here's some of what I said:

What “stand outs” in my mind, about the “Mirror of Justice” effort – in addition to its relatively distinctive subject-matter – is that it is both a “group” blog and one whose contributors disagree strongly about a lot of pretty important things . . .

Our hope, when we started – and when we very deliberately assembled Catholic law professors from a variety of disciplines and from across the political spectrum – was the same one that University admissions officials cite when they do their work, namely, that the diversity would enrich the conversations that took place. It did, and it has . . . but we’ve also fought a lot . . . Our arguments are, almost always, fairly regarded as “fights among friends”, but they happen “in front of” strangers, which is a bit unsettling (at least for me). They flare up and are resolved “in public” – the sharp elbows are thrown, and the sincere apologies extended, “in public.”

And so, over the years, I’ve come to think of our role less in terms of “providing for the world a coherent Catholic legal theory”, and also less in terms of contributing to (or imposing on) the world various pieces of “public intellectualism.” Instead, . . . I’ve tended to think about what we do more in terms of “modelling.”

It seems to me that what we provide, or offer (or fail to provide or offer) to readers is not so much the discrete work product of a dozen “public intellectuals” as a conversation – an illustration or example – that is, depending on the day, more or less edifying and productive. When I’m blogging now (and this was not always true), I’m thinking not so much of “my own” readership, the way I might if I were a regular columnist for the Washington Post, as I am of my students, and my fellow bloggers’ students, who might be thinking hard about what it means to have a vocation in the law and to aspire to integrate that vocation with one’s religious faith and traditions.

Whether we on the blog are talking or arguing about the election, or immigration reform, or the philosophical anthropology underlying and animating the law of torts, I find myself these days thinking less about the importance of persuading as about the “way the conversation is going.” Don’t get me wrong: My fellow bloggers and I have views (often strong views) and we all want, I am sure, for those who disagree with us to yield to our superior arguments. (We’re lawyers, after all.) Still, and without being too polly-annish or precious, I have found myself in recent years more focused on the community-building and community-maintenance dimension of my blogging than on its evangelical or propagandizing aspects.

I hope no one thought or thinks that my point was that MOJ is somehow more of a "community" than is Prawfs or other group blogs -- that's not it. It was, instead, just that my own experiences over there have, over the years, prompted me to think differently about the blog's "mission" and about what I'm doing over there, and maybe over here, too ("albeit in a boring way until recently"). I have to admit, I worry more about the times I fall (well) short in terms of the "modelling" thing than I do about whether or not X reader changes his or her mind after reading my 143rd post on the ministerial exception!

Surprisingly, many of the Court’s questions for Myriad’s
counsel focused on what Justice Breyer dubbed the “Lander Brief” – an amicus filed on behalf of neither party
by one of the country’s leading scientists, Dr. Eric Lander. (Lander was one of
the leaders of the Human Genome Project and co-chair’s the Presidents Council
of Advisors on Science and Technology.) [Full Disclosure: I am one of the
authors of this brief] Justices Breyer, Ginsburg and Alito referred to the
brief by name, and several other Justices were clearly influenced by the
information in the brief.

I believe that the “Lander brief” was a hot topic of conversation because the Justices realized that it was
central to applying the Court’s product-of-nature doctrine to DNA. Importantly,
the brief demolished the scientific foundation of the Federal Circuit decision
on appeal. The Federal Circuit panel held that human chromosomes are not patent-eligible
because they are products of nature, but a majority found that “isolated DNA” fragments of human chromosomes (such as
pieces of the breast cancer genes) are patent-eligible. The Federal Circuit’s
distinction rested on its assumption that (unlike whole chromosomes) isolated
DNA fragments do not themselves occur in nature, but instead only exist by
virtue of the hand of man.

The Federal Circuit cited no scientific support for its
crucial assumption – neither in the record below, nor in any scientific
literature.

Embarrassingly, the Federal Circuit’s assumption turned out
to be flat-out wrong. The Lander brief summarized 30 years of scientific
literature showing that natural processes in the human body routinely cleave
into isolated DNA fragments. Isolated DNA fragments turn out to be abundant
outside of cells – including in cell-free blood, urine and stool. They are so
common that they can be used for genetic diagnostics of inherited diseases and
cancers. In fact, they are so prevalent that several scientific groups have
shown that it is possible to determine the entire genome sequence of a fetus
based on analyzing the isolated DNA fragments found in a teaspoons-worth of its
mother’s blood.

Justice Breyer relentlessly pushed Myriad’s counsel to
declare whether he agreed or disagreed with the Lander Brief. When the counsel
finally declared that he disagreed, Justice Breyer demanded:

JUSTICE BREYER: Okay. Very well. If you are
saying it is wrong, as a matter of science, since neither of us are scientists,
I would like you to tell me what I should read that will, from a scientist,
tell me that it's wrong.

The only reply that Myriad’s counsel could muster was to point
to a declaration that had been filed (by Dr. Mark Kay) in the District Court case
in 2009. (In fact, Dr. Kay’s declaration said nothing whatsoever about whether
isolated DNA fragments occur in Nature. It concerned how to construe terms in
Myriad’s patent.)

A few minutes later, Justice Ginsburg returned to the point:

JUSTICE GINSBURG: Do you concede at least that
the decision in the Federal Circuit, that Judge Lourie did make an incorrect
assumption, or is the Lander brief inaccurate with respect to that, too? That
is, Judge Lourie thought that isolated DNA fragments did not exist in the human
body and Dr. Lander says that --

MR. CASTANIAS: No, what -- I think Justice --
Judge Lourie was exactly correct to say that there is nothing in this record
that says that isolated DNA fragments of BRCA1 exist in the body. Neither does
Dr. Lander's brief, for that matter. And for that matter, those isolated fragments
that are discussed in Dr. Lander's brief again are -- are what are known not --
not in any way as isolated DNA, but as pseudogenes. They're typically things
that have been killed off or mutated by a virus, but they do not –

Here, Myriad’s counsel proved to be confused. Contrary to
Mr. Castanias’s statement, the Lander brief (on page 16) explicitly stated that
isolated DNA fragments were found covering the entire BRCA1 and BRCA2 genes.
Also, “pseudogenes” had nothing to do with Lander’s brief; they arose in the
ACLU’s brief for Petitioners and in Myriad’s reply. (“Pseudogenes” are sequences
in the human genome that occur when RNA is rarely reverse transcribed into DNA;
they are relevant to the patentability of cDNA but are unrelated to the
patentability of genomic DNA.)

Justice Alito then jumped in, offering the only glimmer of
hope for Myriad’s counsel:

JUSTICE ALITO: But isn't this just a question of
probability? To get back to your baseball bat example, which at least I -- I
can understand better than perhaps some of this biochemistry, I suppose that
in, you know, I don't know how many millions of years trees have been around,
but in all of that time possibly someplace a branch has fallen off a tree and
it's fallen into the ocean and it's been manipulated by the waves, and then
something's been washed up on the shore, and what do you know, it's a baseball
bat.

In other words, Justice Alito asked whether isolated DNA
fragments of the BRCA genes might be freakishly rare. Neither opposing counsel nor
the Solicitor General had an opportunity to address Justice Alito’s question,
because they had already spoken.

The answer to Justice Alito’s questions turns out to be:
VERY common. A typical person contains roughly one billion
isolated DNA fragments of the BRCA genes circulating in his or her blood.

The Lander Brief (in footnote 23) cites several papers
showing that, in 1 milliliter of blood (1/4000th of total
circulation), each nucleotide in the human genome was covered by about 250
fragments on average. In total circulation, this corresponds to about 1 million
fragments (= 4000 x 250) covering each individual base. Across the length of
the BRCA genes, this translates to about 1 billion fragments.

More explicitly, footnote 25 points to a web site published
by Stanford Professor Stephen Quake (the author of one of the studies), in
which he specifically reported the coverage of the BRCA genes in the blood
stream. Dr. Quake’s data directly showed
that a typical person carries roughly 945 million fragments of isolated DNA
from the BRCA1 and BRCA2 genes.

I was very happy the Lander brief has got this much
attention, since I think that once the Court understands the fundamental
mistake made by the Federal Circuit (and apparently Myriad’s counsel), as
several of the Justices questions suggested they did at oral argument, the
outcome of the case becomes clear. The Court actually can sidestep a number of
more difficult questions in patent law (about the precise meaning of the
standard under Diamond v. Chakrabarty
for when a molecule is “markedly different” than a product of nature), because
isolated DNA fragments of the human genome are precisely products of nature
themselves.

Some Must Reads from the Mich LR Books Issue

I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more.

Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.

The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.

And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course. For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.

Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.

In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces.

Wait, does this mean that Iraq DID have WMDs?

At the Volokh Conspiracy, Professor Adler explains how Boston bomber Tsarnaev has been charged with using a "Weapon of Mass Destruction." Linking to a discussion on Popehat, Adler points out that the statute invoked defines "WMD" as "any destructive device," with a reference to a separate definition of that term that includes IEDs. The government's interpretation is clearly that any IED counts as a WMD.

One way to interpret the WMD provision is simply to plug in the "destructive device" definition. But that would seem to be similar to plugging in "Waters of the United States" as the definition of "navigable waterways." Doing so in the CWA context, said the Court, reads out the term navigable -- and in the Boston bomber case, I wonder if using the statutory definition reads out the "mass" from WMD.

Now, it certainly might be asserted that use of an IED in a crowded public space or tossing a grenade into a mall would constitute an act of mass destruction. But if the Court was right in SWANCC that there is a difference between giving "a word limited effect" and giving it "no effect whatever," it seems the government might have to show that a destructive device rose to the necessary level of a mass threat to trigger the WMD provision. If a person uses an IED to, say, blast a stump in their own back yard, have they used a WMD? [Legal disclaimer: please don't use an IED to blast a stump in your back yard].

Another way to interpret the WMD statute is to assert that any destructive device could count as a WMD -- but only if it is in fact a WMD.

Hunting Zombies: The War on Drugs and Prison Growth

Before
jumping in, I’d like to thank Dan for inviting me back to post on
Prawfs. I’ve always enjoyed my experiences here in the past, and I’m
looking forward to it all once again. Now on to the post.

Zombie
ideas—those ideas that have been invalidated by facts but remain widely accepted
because of their political appeal—are a menace everywhere. My goal in this post and posts to
come is to do my best to kill one of the most persistent zombie ideas in
criminal justice.

The zombie
I’m going after here? The common claim that the explosion in the US prison population was primarily (or majorly) caused by the War on Drugs.

It was not. Given how overwhelming the data is on this issue, this
zombie’s persistence is as puzzling as it is frustrating.

In fact,
I’ll go even further: not only has the War on Drugs not been the primary engine of prison growth, it also has not even been the primary engine of
racial disparities in prison populations.

Not that you
would know this by looking at the academic and popular literature. Everyone
from Michelle Alexander—whose book James
Forman accurately dismantles,
and which I will be criticizing as well—to Adam Gopnik in the pages of the New
Yorker and Fareed Zakaria in the pages of Time
tends to make this argument. I took aim at this argument recently in a review of
Ernest Drucker’s book, The Plague of
Prisons, in Michigan’s book review issue; I want to develop the argument
more fully here, and for a wider audience.

Let me be
perfectly clear: I am not saying the War on Drugs has played no role in prison
growth whatsoever. Nor am I saying that it is racially neutral, nor that it is
sufficiently unimportant that we can ignore it. But I am saying that the
following statements are wrong, in direct contradiction of what I hear and read
all the time:

The
incarceration of low-level drug offenders is the primary (or even a major)
engine of prison growth.

The
incarceration of drug offenders in general is the primary (or even a major)
engine of prison growth.

The
incarceration of drug offenders is responsible for much of the racial disparity
we see in prison populations.

Drug
offenders serve disproportionately long sentences.

My guess is
that many, if not most, people believe at least some
of these statements. But each one is wrong.I will start
by demonstrating why each claim is wrong.
Then I’ll show what theories do
have empirical support.

When looking
at what does cause prison growth, I will include the War on Drugs: there is at
least some nuance to my argument here. But while it is true that the War likely
matters, its effects are indirect and thus exceedingly hard to measure. Do drug
arrests that do not result in incarcerations themselves nonetheless lead to
future incarcerations for more-serious crimes by undermining offenders’ career-
and other pro-social opportunities? How many aggravated assaults and murders
are due to the War’s effect on illegal drug markets? Do drug convictions that
do not result in incarceration nonetheless generate longer prior-history
records that increase the risk of incarceration for future non-drug crimes?

These are all important ways in which the War
on Drugs can matter, and they can matter both in terms of the number of prisoners and the racial or economic composition of prison populations. But in each of these cases, the magnitude of the War’s
impact can be hard to disentangle from other factors, and the causal arrow spins madly like a
compass on the island from Lost.

I’ll also
raise a broader question: how do you actually kill a zombie idea in general? In
many ways, zombie is the wrong term to use: we should think of these ideas as hydras.
Zombies are very hard to kill, but each
time you shoot/stab/hit/punch a zombie, it gets a bit weaker—just not fast
enough. Ironically, as I will discuss later, each time you attack a bad idea it
can perversely grow stronger, like
the hydra growing two heads for each one chopped off.

The
overemphasis of the War on Drugs is not a minor problem. States are eagerly
trying to figure out how to reduce their prison populations. If we don’t know
how we ended up with so many people in prison, how can we amend our laws and
policies we get the outcomes we want? If we act as if the War on Drugs is the
cause of our problems, we aren’t going to solve them.

One last
thing I want to make clear before I jump into the substance of stuff. I am not
a proponent of the War on Drugs. I favor across-the-board legalization (and
taxation) of marijuana, and I found the outcome in Gonzales
v Raich (upholding federal enforcement against purely intrastate drug
markets) depressing. I’m unsure about the extent to which we should legalize or
decriminalize harder drugs, but I certainly believe that we should treat drug
addiction as a public health problem, not a criminal one, and that we could
learn a lot from countries like Portugal.
I think the War on Drugs has been, on net, a waste of time, energy, and
resources, and that it has been needlessly destructive for whatever it has
accomplished.

In other
words, I am not a defender of the War on Drugs, nor even some sort of lesser
fellow-traveller. I’m pretty much opposed to it. But that doesn’t change the fact
that, whatever the War on Drugs has done, it has not driven up our prison
populations by incarcerating drug offenders for long periods of time.

Monday, April 22, 2013

Comments: Spam and not-Spam

Not exactly sure why, but a bunch of legit comments are being caught in our spam filter, and if I can figure out why, it's because a lot of them have a url in the text of the comment. My advice to you is that if you need/want to include a URL in your comment, and you're finding that your comment is getting caught up in our spam filter, then drop me a note and I'll try to get the comment up. Perhaps unsurprisingly, given our dislike of anon comments, we will prioritize signed comments, as we do generally. Thanks and sorry for the inconvenience. Happy Earth Day.

"What Is a Person?"

On Friday, at Notre Dame Law School, I had the pleasure of participating in a really interesting interdisciplinary roundtable-conference, which was generously organized by Prof. David Opderbeck of Seton Hall (and, this semester, of Notre Dame). One of the presentations was by (and several of the discussion-sessions were about) Christian Smith, who presented the basic argument of his fascinating book, What is a Person? Rethinking Humanity, Social Life, and the Moral Good from the Person Up (Chicago 2010). How cool, to write -- and (it seems to me, so far) to pull off! -- a book with that title! (Not to give too much away, but . . . a person is "a conscious, reflexive, embodied, self-transcending center of subjective experience, durable identity, moral commitment, and social communication who -- as the efficient cause of his or her own responsible actions and interactions -- exercises complex capacities for agency and intersubjectivity in order to sustain his or her own incommunicable self in loving relationships with other personal selves and with the nonpersonal world.")

Challenging Gender Stereotypes Begins at Pre-School

A boy goes to school wearing pink shoes. big deal, right? Well, some parents apparently think it is. They are at fault. AOL posted a short version and a full version of a HuffPost segment on the story, in which I get to relate the tale of the boy who went to school with pigtails. The boy was the son of Cornell psychologists Daryl and Sandra Bem known for their works in androgyny and gender studies, so he knew what to do when another little boy teased him.

How Many Years of Famine to Follow Seven Years of Feasting for VAPs?

I was guest-blogging at Prawfsblawg seven and a half years ago when I wrote a post about trends in law professor hiring. As that post described it, VAPs and JD / PhDs were taking over the academy. People with a profile like mine (JD to clerkship to big law firm / government to tenure track teaching position) were becoming rarer and rarer. Top schools were interviewing people with fellowships or PhDs, and in many cases both fellowships and PhDs. I talked about the benefits of this shift, and encouraged candidates interested in law teaching to think about fellowships, ending my post with the words of advice: Do as I say, not as I did.

I think it is time to update that advice.

As variousposts have made clear, a number of candidates on the entry level hiring market struck out this year, and they are scrambling to land other fellowships or transition back into legal practice. I am very cognizant of the privileged position I occupy as a faculty member at an elite school. The Bigelow Program's track record of placement into tenure track jobs is unusually good, even compared to fellowships at other elite schools, and that has always enabled the school to cherry pick aspiring academics. Each of the five University of Chicago fellows on the teaching market this year have accepted excellent tenure track offers or are still weighing elite school tenure track offers. But the contracting market raised anxiety levels for many of them (and for those of us who were advising them).

Nobody knows what law professor hiring will look like seven years from now. We can be pretty confident that next year will be a buyer's market, though. So candidates thinking about going on the law teaching market in the next few years need to be very selective about the sort of fellowships they are willing to take. Taking a fellowship, even at a fancy school, is risky because the professional doors a fellowship closes may be as significant as the academic doors it opens. In a market where permanent faculty hiring is substantially constrained, the question "can this applicant develop into someone who will be hired into a tenure-track job two years from now?" has taken on increased significance among those who decide who gets hired into the best fellowship programs.

In this sort of market, those of us who are involved in hiring fellows and VAPs ought to ask ourselves at the time of hiring whether a candidate is sufficiently promising to enable us to predict with a high degree of confidence that the candidate will be able to transition into a tenure track position at the conclusion of the fellowship. Tenure track hiring is a grave responsibility, and fellowship hiring ought to be as well. A vote of confidence from the fellowship programs that combine high hiring standards with extensive due diligence ought to entice good candidates to take the leap from practice into a fellowship. A fellowship offer that follows little vetting or minimal outreach to existing references ought to set off alarm bells for the candidate who receives it, at least if that candidate has other options for gainful employment.

In a world where promising but risk-averse candidates might still worry about taking a fellowship, schools with the resources to hire that have shied away from hiring "straight from practice" law professors in the past might need to re-calibrate their expectations so they can identify unpolished talent. Perhaps they might even go back to reading published student notes / comments again and taking them seriously as an indication of scholarly potential (or lack thereof). If one result is more practice experience among newly minted assistant professors, few will bemoan the trend.

In recent years, a fellowship has become a proxy for candidate quality, but that may no longer be as true a few years from now. By then, having a fellowship on a CV from a program that isn't quite elite might merely signal some combination of commitment to the scholarly enterprise and tolerance for risk. Decreased interest in such programs, combined with budgetary constraints, might kill off less-established fellowships. A process that begun this year could accelerate next year.

In the short term there will be fewer tenure track positions. In the medium term, tenure track positions may be filled by a more balanced mix of candidates with elite fellowships and no fellowships. And for aspiring professors currently in law school, the importance of finding the right topics to write about, finding the right mentors, and finding one's voice while still on campus may become more important than ever.

Saturday, April 20, 2013

The Securitization of Patents

[I cross-posted this at Patently-O last week, but thought it might be of interest to a more general audience]

My forthcoming article in Duke Law Journal, The Securitization of Patents, argues that the best way to create patent markets might be to start treating portfolios as securities. A full draft is accessible at this SSRN page. The article makes four basic points:

Aggregation and trading is not limited to non-practicing entities – everyone is doing it.

Companies are trading aggregated patent portfolios as they do other patent instruments, either through sale or licensing.

Aggregation is beneficial, even critical, for efficiency; this is directly contrary to the conventional wisdom.

Based on the above, markets might be improved by applying securities treatment to patent portfolios.

[NB: I focus on portfolios, not individual patents. I also focus on sale and licensing of patents, not the initial patent grant. The paper explains why in more space than I have here.]

When I first wrote Patent Troll Myths, there was very little empirical data about NPEs. Since then, such research has exploded, with new data every week seemingly counting the number of NPEs and their cases. This data, though helpful, leaves a lot to be desired, I think. First, there is a rarely a real apples-to-apples comparison with the activity of product companies (and when there is, the comparison is not very granular). To that end, I’ve been developing a matched data set for my Patent Troll Myths data so we can test what real differences in quality and quantity, if any, exist. Second, the data largely ignores licensing practices, which can be quite similar. To be fair, licensing data is difficult to come by, but without it, normative determinations are difficult. Third, studies like mine, which look at the provenance of NPE patents, are rare.

These issues lead to my first point: aggregation is not just for trolls anymore, if it ever was. The public is becoming a bit more aware of this with new focus on privateering, the outsourcing of patent enforcement by product companies to licensing and assertion specialists. The idea that aggregation is just fine when a product company does it, but suddenly evil when those same patents transferred to a third party has never sat well with me. And regardless of moral considerations, the fact of the matter is that patent aggregation is everywhere.

My second point follows from the first: aggregated portfolios are being used as assets, and traded as such by all sorts of companies. This is nothing new; people have been writing about patents as a new asset classes for a while now. Transactions are getting bigger, however, and they are hitting the news. Perhaps no transaction better illustrates my point than the recent Kodak patent auction. First, Kodak offered its patents for sale as a financing strategy in bankruptcy. Second, the eventual buyer was a consortium including, among others, Microsoft (a product company); Intellectual Ventures (a licensing company, but also one that litigates, but also one that aggregates defensively; and RPX (a defensive aggregator). This one transaction is my argument in a nutshell: everyone is aggregating, and they are doing so in buy/sell type transactions for financial purposes.

My third point is that such aggregation is not always (or necessarily often) a bad thing. This is decidedly against the conventional wisdom. Companies with large portfolios surely have the ability to cause “royalty stacking,” but in practice this is less likely than if many separate parties enforced those same patents. Litigation looks much the same; regardless of the size of the portfolio, courts are just not going to hear a case asserting 1000 patents. Only a few (at most 5 or 10) patents will be at issue, and then the aggregator looks like anyone else. Similarly, in negotiations, the parties usually haggle over a few “lead” patents. This is little different than negotiation with the owner of few patents – with one big exception. When you come to terms with the aggregator, you can settle and license hundreds or maybe thousands of patents at once. Not so with single-patent owners. These folks line up one after another, asserting a few patents at a time. The biggest NPEs will often assert patents obtained by individual inventors; would product makers really rather that the inventors assert their own patents separately? Maybe, before a time when people figured out a viable mechanism for funding patent assertion, but now that individuals might seek funding for enforcing their own patents, a single aggregator must surely be a better option than many inventor plaintiffs.

There is one difference with aggregated portfolios, of course. When the parties are done haggling over the lead patents, the portfolio owner always has more to discuss while the small patent holder has none. But rather than being the greatest cost of the portfolio, a seemingly bottomless portfolio is its greatest benefit.

And that is my fourth point: when parties are trading portfolios, the haggling should be over price instead of quality and infringement. In a large enough portfolio holding patents directly related to a particular product, there will surely be some number of patents that are both valid and infringed. The question is how many, and how much it will cost to find them. A central thesis of my article is that treating portfolios as securities will help lower transactions costs in a variety of ways by limiting the litigation costs of finding those infringing patents and instead better pricing patents in the market. For you legal sticklers, I didn’t just make this up: the paper looks at portfolios under the Supreme Court’s famous Howey test and concludes that such treatment is at least plausible under the law.

How might securities laws benefit markets? Not in the traditional “public offering” way. I suspect that most transactions would be excluded from the registration requirements. However, such transactions might be regulated as dark pools, and require clearinghouse treatment that makes such transactions public. Further, stock fraud laws might require the disclosure of information that might affect portfolio value. For example, patent holders who know of anticipatory prior art might be required to disclose it rather than keep it secret. Perhaps most important, accepting that portfolios are simply financial transactions might drive efforts to develop objective portfolio pricing. The goal of such pricing schemes is to determine a portfolio’s price even though the parties cannot agree on the price of any of the particular patent in the portfolio. I examine several pricing strategies that might work (and several destined to fail) in the paper.

There is obviously much more in this paper than I can write here. I detail my arguments in the full paper.

Friday, April 19, 2013

Interesting Reading on Current Events

Two interesting posts from VC in the last day on current events in Boston. The first, from Stewart Baker, asserts that the ACLU and EFF were wrong about thing #1, and concludes that they therefore must also be wrong about thing #2. The second, from Eugene Kontorovich, laments (I think) that the two Chechen suspects "have succeeded in turning Boston, America’s cradle of liberty, into a prison," a situation that shows "that it is not just the civil liberties of terrorists at stake, but also those of millions of innocent civilians." He adds that, if these suspects are actually part of the group of Chechen Islamic terrorists from abroad and if that threat has come to the United States, then "dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, for example, turns away from talking frankly about the terrorists['] profiles and motives," which would mean, well, I'm not sure what, but it sure would be better than "obscene lines and searches at airports."

Search me if I can figure out exactly what the hell either of them are talking about. But, like I said, interesting posts.

Thursday, April 18, 2013

Why fan speech matters

If you want proof that sports fan speech matters, that it has strong political content, and that the stands of sporting events are a site for genuine First Amendment activity, look no further than last night's Boston Bruins game, the first game played in Boston since the Marathon bombing.

Sporting events remain the only place in which adults regularly gather and engage in patriotic rituals, so the game marked one of the first ordinary events in which people could come together in an expression of patriotism, support, and healing in the wake of a tragedy. It is a great moment--and also an unquestionably political one and an unquestionably expressive one.

Er, Not So Final

I claimed earlier today that I was issuing the final call for the entry-leveling hiring report. But I now think it's too early for that--apparently hiring committees at more than one school will be meeting through mid-May. So, not so final. I'll issue the final call in a few weeks. But of course, if you've got the info, post it! Send it!

Intellectual diversity and institutional pluralism

Over at Balkinization, Mark Tushnet has a few posts commenting and reflecting on a recent event at Harvard Law School, "Intellectual Diversity and the Legal Academy." He notes, in one place, that "what’s striking about the political spectrum in law schools is that it ranges from the center-left, with a handful of outliers to the left, to the rather conservative right." My own sense is that it would be more accurate to see any "rather conservative" law professors as being "outliers" in the same way that those whom Mark regards as truly "left" are, but I suppose there's no way around the fact that the labels used say as much about the labeler as they do about the labeled, and so I won't dwell on this point.

What really grabbed my attention, though, was Mark's observation in passing that "[i]t’s not at all clear to me that, given across-institution diversity, there’s a problem with the market in legal education. So, maybe the complaint isn't that there's not enough across-institution diversity." I think Mark's right to highlight the distinction between cross-institutional and intra-institutional diversity; it's one that is important to keep in mind in this and many other contexts. (So, for example, some of us think that "all comers" rules for recognized student groups mistakenly sacrifice diversity among groups for diversity within groups.) A few years ago, then-Dean John Garvey made this the theme of his tenure as Chair of the AALS, and I blogged about his "institutional pluralism" focus here and elsewhere (and here and here). We might worry, as we think about the "failing law schools" problem, that there's too much (AALS- and ABA-imposed?) sameness among law schools, and not just of the ideological kind.

I agree with Mark that the problem -- and, perhaps unlike him, I do think that it is a reality and a problem -- of a lack of ideological diversity within law schools' faculties and student bodies can be addressed, if not entirely alleviated, by more institutional diversity -- by a genuine market in student bodies and faculties. For such a market to really address the lack-of-intellectual-diversity problem of, though, it seems that there would need to be meaningful institutional diversity (along ideological as well as other lines) among the very top law schools and while I think there is some, there's probably not enough for the kind of market Mark is thinking about.

I'd note, finally, that - thinking about the fact that the "conservative" schools Mark identified are all schools with a religious character or affiliation -- I think we need to be careful about equating a school's distinctive religious character with a "conservative" ideological character. A Catholic law school, for example, might have more than the typical number of students and faculty who support closer regulation of abortion, but that same school might also have more than the typical number of students and faculty who are skeptical of certain forms of libertarianism or who support an arguably inefficiently (by some measures) generous level of social-welfare programming.

The Kiobel Territorial Nexus Test: I Know It When I Don’t See It

Yesterday’s Kiobel opinion has forced me to take a time-out from my series on post-Kiobel corporate liability to actually talk about the opinion. As Howard began explaining moments ago, the majority opinion invoked the presumption against extraterritorial application, relying on Morrison v. Australian National Bank (a securities case involving the Exchange Act). I have long felt that despite the factual similarities (a foreign plaintiff suing a foreign defendant for foreign conduct), relying on Morrison would likely produce a frustratingly vague opinion. And guess what . . .

The Morrison court found in 2010 that the Exchange Act’s explicit focus is the domestic securities markets. It thus held that the act applies only to domestic securities transactions; this is the beloved transaction test. Having clearly articulated a line, the Court explained that the Morrison facts crossed it. But Kiobel articulates no such line; it provides no real analogue to Morrison’s transaction test.

In fairness, the opinion provides something, a “sufficient force” test: the conduct must touch and concern the territory of the U.S. with sufficient force to displace the presumption against extraterritoriality. But it’s plainly a stop-gap measure: it appears in the penultimate paragraph, and the Court doesn’t even bother applying it to the facts. I think we can tell why. Egads.

It may be fair to say that Kiobel takes Justice Potter Stewart’s definition of obscenity and turns it on its head: rather than “I know it when I see it,” Kiobel gives us “I know it when I don’t see it.” It tells us that the Kiobel facts do not satisfy the territorial nexus -- I guess they don’t touch and concern U.S. territory with sufficient force -- but unlike Morrison, provides almost no guidance on which facts would. Justice Kennedy, in concurring, finds this “the proper disposition” because it “leaves open a number of significant questions.” That’s an understatement. Justice Kennedy, we’ll recall, seemingly did not wish to leave open such questions in Morrison, signing on to Justice Scalia’s opinion.

So the next generation of ATS litigation (such as it may be, given that most current and prospective ATS cases will probably fail the sufficient force test) will likely focus to a large extent on the territorial nexus question. As for predictability, that stated aim of the presumption against extraterritorial application? Oh well.

Entry Level Hiring: The 2013 Report - Final Call for Information [Update: Not So Final!]

This is the [not-so-]final call for information for the Entry Level Hiring Report. I will close the report on Thursday, April 26 in mid-May. [Update, 4/18/13, 9:42a: I have been advised by several people that hiring at certain schools will be ongoing until mid-May, and I don't want to jump ahead of things when it comes to compiling the information. But still! If you have the information, let me know now! Let's fill up this spreadsheet!]

If you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires:

Jurisdiction (of every shape and kind), Merits, and Kiobel

SCOTUS at long last decided Kiobel v. Royal Dutch Petroleum on Wednesday, unanimously rejecting the claim under the Alien Tort Statute. Five justices (via the Chief) went with a no-extraterrotriality approach, while four justices (Justice Breyer for Ginsburg, Sotomayor, and Kagan) urged a more-precise understanding of the ATS as a jurisdictional grant. Importantly for my interests, the Court as a whole tries (and more or less succeeds) in continuing the sharp distinction between merits and jurisdiction under ATS first drawn in Sosa v. Alvarez-Machain, which should apply more broadly and generally.

The majority begins with Sosa and the notion that the ATS is "strictly jurisdictional," that it does not regulate conduct or afford relief, and that it is the federal courts recognizing the cause of action. Awesome.

But then the majority refers repeatedly to actions "brought under" the ATS, a term typically applied to the substantive law rather than the jurisdictional grant (e.g., an "action brought under Title VII" or "an action brought under the Sherman Act"). Further, the presumption of extraterritoriality, which the majority relies on, fits oddly here, since the ATS itself is only granting jurisdiction; extraterritoriality and the presumption against it ordinarily concerns the reach of the applicable substantive law created by a legislature.

The answer, I think, comes on p. 8 of the majority slip opinion, which says the following:

The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provide by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.

In other words, federal courts' authority to recognize causes of action is granted by Congress through the ATS; the courts do not have the inherent authority to create common law causes of action (the way a state court might). Stated differently, the ATS is a jurisdictional grant in two respects: It grants courts adjudicative jurisdiction to hear and resolve certain cases and it grants them prescriptive jurisdiction to prescribe substantive rules of conduct for certain transactions or occurrences. But the latter is limited to causes of action within the scope of the statutory grant itself. Hence the statutory extraterritoriality analysis--if the ATS does not have extra-territorial application (as the Court concludes), then neither can the cause of action created by the courts pursuant to the delegation in the ATS. Thus, the substantive cause of action the court could create under the ATS fails here because the conduct occurred overseas and involved foreign nationals--which sounds like a 12(b)(6) merits dismissal.

Justice Breyer's concurrence uses the word "jurisdiction" (or "jurisdictional") a bit loosely for my taste, so it's hard to know exactly what he is talking about. On pp. 1 and 7 of the slip op., Breyer argues that the statute "provides jurisdiction" (or that he would "find jurisdiction") where: 1) an alleged tort occurs on American soil; 2) the defendant is an American national; or 3) the defendant's conduct substantially and adversely affects an important national interest, including an interest in not becoming a safe harbor for pirates (or their modern equivalent).

The problem is that it is not clear what Breyer means by "jurisdiction" there. Does he mean adjudicative jurisdiction? If so, the third prong (and perhaps the first) bleeds over into the merits of the claim. Whether the defendant's conduct affects a national interest, like whether conduct affects interstate commerce, looks at the real-world conduct itself and thus (at least on my preferred model) should not have anything to do with the court's adjudicative authority. Alternatively, this framing is less problematic if he means, like the majority, prescriptive jurisdiction. That is, the only causes of action a federal court can recognize and attach liability to are those that meet those three elements. I can live with that as a limitation on the court's prescriptive authority and thus on the substance of any claim. But I still would suggest that it is better to describe that as a limitation on the available court-recognized cause of action rather on jurisdiction.

Measuring Generosity

In Why the Rich Don't Give to Charity, Ken Stern writes that with all the attention given to donations from wealthy people, "you would be forgiven for thinking that the story of charity in this country is a story of epic generosity on the part of the American rich. It is not." Stern notes:

One of the most surprising, and perhaps confounding, facts of charity in America is that the people who can least afford to give are the ones who donate the greatest percentage of their income. In 2011, the wealthiest Americans—those with earnings in the top 20 percent—contributed on average 1.3 percent of their income to charity. By comparison, Americans at the base of the income pyramid—those in the bottom 20 percent—donated 3.2 percent of their income. . . . [S]ome experts have speculated that the wealthy may be less generous—that the personal drive to accumulate wealth may be inconsistent with the idea of communal support.

Of course, Stern's argument requires us to view generosity in subjective terms. Given that the 80th percentile in income in the U.S. is about 5 times that of the 20th percentile, the top 20% is surely donating far more dollars than the bottom 20%.

So what is the best way to measure generosity? It depends. If you are deciding whether to focus your fundraising efforts on the top quintile or the bottom quintile, you should probably focus objectively on dollars and choose the top quintile. Similarly, if you are choosing a career and want to maximize your charitable giving, you should focus on your ability to give dollars even if doing so reduces the fraction of your total income you will later give.

If, however, we're considering how much giving "hurts," percentages of income capture some useful information. But they are still rough proxies because we don't necessarily experience the "hurt" of giving in percentage terms. From a purely subjective perspective, it may hurt the average rich person a lot less to give 3% than it hurts the average poor person to give the same percentage. After all, the rich have already taken care of their basic needs for food and healthcare before they open their wallets. But research could support the opposite conclusion: maybe it hurts the average rich person more to give a given percentage. That would be one explanation for the findings Stern discusses.

To make all of this even more accurate, we should control for tax incentives to donate that depend on wealth. We should also control for "charitable donation substitutes." Two effects stand out: First, rich people may view a significant portion of their taxes as charity. Whether a person addresses the healthcare needs of the poor through taxes or through a private donation, they might think, does not entirely change its charitable nature. True, the tax expenditure is compelled. But some rich people may reduce their charitable donations because they believe, correctly or incorrectly, that they are already making substantial donations by paying their taxes. Second, people give not only money but also time and energy either to formal charities or to friends and families in need. I don't know how such behaviors compare between rich and poor, but poor people may give much more in this respect than rich people. And I'm sure I'm only scratching the surface of the complex issues raised here.

The subjectivity of generosity aside, there is an even more important issue about how to measure the good that donations actually accomplish. Stern offers this interesting tidbit:

Of the 50 largest individual gifts to public charities in 2012, 34 went to educational institutions, the vast majority of them colleges and universities, like Harvard, Columbia, and Berkeley, that cater to the nation’s and the world’s elite. Museums and arts organizations such as the Metropolitan Museum of Art received nine of these major gifts, with the remaining donations spread among medical facilities and fashionable charities like the Central Park Conservancy. Not a single one of them went to a social-service organization or to a charity that principally serves the poor and the dispossessed.

Wednesday, April 17, 2013

Blackman on "History" and Biochemistry

In an enjoyable and well-written post, Josh Blackman asks whether originalist questions present anything more difficult or different from other complex questions the courts are called on to resolve. He writes:

A common attack on originalism is that judges are not trained historians, and lack the skills to understand the nuance and context of history. I have never found this argument particularly compelling, because judges are frequently called on to understand complicated disciplines outside the law. . . .[M]y point goes more to methodology than substance. Judges are called on to understand difficult concepts. Relying on briefs by attorneys who specialize in these areas, judges, by their best lights, come to an answer. . . . History seems to be even closer to the area judges train in than biochemistry. Considering the competing briefs of historians allows for an adversarial review of the original public meaning of certain concepts.

With respect, I think this is not yet a sufficient response. For one thing, judges could of course do both badly. The fact that judges are (or consider themselves) called on to decide complicated issues in other fields doesn't mean they do it well, so it doesn't tell us whether it's a problem with respect to history; it just tells us it's not a unique problem.

For another, in many such areas there is a substantial administrative agency structure in place to allow first-order evaluation of these questions by experts with significant experience in the field. Much of the question for judges then becomes what level of deference to apply and when. That's less true of history; there's no Federal History Agency taking a first stab at these questions. Yet again, the questions that arise with respect to biochemistry may have readily falsifiable answers that help to weed out clearly wrong opinions; the questions that arise in history may not.

Blackman is right that it's ultimately a question of methodology, certainly. But that also suggests a difference. Courts, or courts in concert with the administrative state, may seek ways to avoid having to decide difficult technical questions outside their expertise. But originalism, of whatever variety, is an approach to constitutional law that actively forces judges into a field in which they arguably lack expertise. It increases rather than decreases the epistemological problem. If you were looking for a judicial methodology of constitutional interpretation that avoided putting judges in a position for which they're ill-suited, presumably you would focus on what judges do well and often--crunching doctrine--rather than on an approach that requires them to do history. Originalists argue that they are required to do some form of history because that is what legitimate constitutional interpretation requires. Presumably, then, they would argue that whether they can do it well or not, it's what they're called upon to do just the same, and Article V will serve as a safety valve. Fair enough, if you accept the premise (I don't). But it's still an odd ex ante choice of method if what you care about is comparative institutional expertise.

A slightly different but related answer, and I think an accurate one, is to say that originalist judges aren't "doing history" in any sense in which actual historians would describe their own field. They're doing a legal activity that consists of deriving present meaning from text based on the original public understanding of language. They're doing so in a way that is constrained in various respects in terms of sources, goals, selection effects (the fact that judges are trying to answer a specific question about a contemporary legal issue, and so will be affected by presentist concerns, rather than at least taking on a broad question with less of an interested starting-point), and so on. The results of that method may be judged in various ways; of these, historical accuracy is one but hardly the only measure. Historians, and historians' briefs, may aid them in this endeavor, but not much and rarely definitively. (And do judges really listen to historians anyway?) What they do may be closer to etymology than history. I doubt they have much expertise here either. But it's at least valuable to have a more precise understanding of what they're doing, rather than use "history" as a catchall label or judge their efforts by the standards of a related but different field altogether.

The ultimate question is whether originalism is required of judges engaged in constitutional interpretation or not; I can't answer that question here. But if it is, it won't matter much whether they're good or bad at it, or whether they're any better or worse at that than at deciding cases involving biochemistry. Still, we recognize in all kinds of ways that judges are lousy at biochemistry and seek ways of avoiding the necessity of doing so, or of limiting their work in this area to questions and methods they're capable of dealing with. Originalism does the opposite: it requires judges to dive headlong into an area of inquiry--but don't call it "history!"--at which they're arguably not especially able. I doubt the comparison between history and biochemistry is entirely apt, for the reasons I've given; but if it is, I don't see why it should comfort us any.

The Moody Bluebooks

Just to show that it's not only law students who can do song parodies. The following was passed along by Lou Mulligan at Kansas: It's The Moody Bluebooks, a band of KU law faculty, performing "I'm a Gunner, So Call On Me Maybe." The performance was at the school's Pub Night, an event sponsored by the school's Women in Law that raises money for a local women's shelter. Lou didn't identify the members of the band, so best guesses are welcome.

Tuesday, April 16, 2013

San Diego Tax Law Powerhouse

Allow me to indulge for a moment in a brief sharing of our excitement here at University of San Diego as we celebrate the move of three top law scholars all at once to join our ranks. Miranda Fleischer (Colorado), Vic Fleischer (Colorado), and Howard Abrams (Emory) are joining our faculty and will not only strengthen our excellent tax law program but our business and corporate fields, and most generally, scholarly and collegial community. Here is a bit more about the happy news.

CFP: Sixth Annual Junior Faculty Fed Courts Workshop

CALL FOR PAPERS:

Brooklyn Law School will host the Sixth Annual Junior Faculty Federal Courts Workshop on
October 4-5, 2013. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars will be announced shortly.

The
workshop is open to non-tenured and recently tenured academics who
teach and write in Federal Courts, Civil Rights Litigation, Civil
Procedure, and other associated topics.
Those who do not currently hold a faculty appointment but expect to do
so beginning in fall 2014 are welcome. The program is also open to
scholars wanting to attend, read, and comment on papers but not
present. There is no registration fee.

The
conference will begin with a dinner on Thursday, October 3, then panels
on Friday, October 4 and Saturday, October 5. Each panel will consist
of 4-5 junior scholars, with
a senior scholar serving as moderator and commenter and leading a group
discussion on the papers. Brooklyn Law School will provide all meals
for those attending the workshop, including a welcome dinner on Thursday
and a reception on Friday.

Those wishing to present a paper must submit an Abstract by
June 16, 2013. Papers will be selected by a committee of past
participants; presenters will be notified by early July. Those planning
to attend must register by August 26, 2013.

We
are setting up a web site and submission e-mail; we will provide all
that information as the submission and registration dates draw near.
Anyone wanting to submit right
away can send abstracts to me at
robin.effron@brooklaw.edu.

Goodbye to all that: Rotating out of the Associate Dean job

In a few months, I'll be wrapping up my time (four years) as Associate Dean, and handing things over to a (more capable!) colleague. And -- in part, no doubt, in order to avoid actually completing several Associate-Dean-related projects -- I've been reflecting a lot on how things went, what I learned, what I could or should have done differently, etc. On balance, for sure, I've enjoyed the experience. There are costs -- less writing-time and more meetings-time! -- but there's a non-trivial amount of psychic income that (for me) comes with feeling like one has helped (or even tried to help) an institution that one cares about move in the right direction.

At present, my main "takeaway" is that the associate-deanship has been a humbling (even when not humiliating) experience: I know more about all the impressive things my colleagues are doing; I know a lot better than I did before how much I don't know about legal education, law schools, and law faculties; I know with crystal-clarity how over-confident I was, 5 years ago, that the right steps to take, with respect to all kinds of questions, were clearly see-able and easily do-able. In a way, it's nice -- but in another way, it's a bit immobilizing -- that this new-ish appreciation coincides with all the navel-gazing and hand-wringing inspired by the current "crisis." I think I have some plausible -- even good -- ideas about what nature of the problem, and about some of the steps we might take in response but . . . I have a now-healthier sense of how likely it is that there's more to the problem, and the steps, than I realize.

A Challenge to Strict Proportional Punishment

Consider two people who engaged in the same violent offense and are equally blameworthy for doing so. Assume they are alike in all pertinent respects except that one of them is known to be much more prone to violence. For those strictly committed to proportionality, these offenders should be punished equally because they committed the same offense with the same blameworthiness, and the theorists I am addressing ignore consequentialist considerations like future violence.

When we assign these offenders to prisons, however, the offender known to be more violent is likely to end up in a facility that allows less freedom and causes more distress. Whether we measure punishment severity in terms of bad experiences, liberty deprivations, or both, the more violent offender has a more severe punishment per day incarcerated.

How long should they be incarcerated in order to punish them equally? Giving them an equal number of days in prison does not give them equal punishment since each day is worse for the more violent offender. What strict proportionalists would have to do is give the more violent offender a shorter sentence in order to treat both offenders equally. This seems like a very unappealing conclusion: the more dangerous you are, the more we have to restrict you in prison, and the more quickly we have to release you relative to equally blameworthy but less dangerous offenders.

Proportionalists could try to put offenders in identical prison conditions, but doing so is extraordinarily impractical. Even if we could, I doubt most people think it is morally required. Alternatively, proportionalists could argue that so long as we intend to give both offenders equal punishments, then we have satisfied the requirement of proportionality even if we know one offender will get more harsh treatment. But that's an unduly restrictive view about intentions. In the rest of the criminal law (and in moral contexts more generally), we deem people responsible for actions they do knowingly and not just on purpose. The same principle applies to judges and the state more generally. If we are virtually certain more violent offenders will be more restricted in their liberty, we cannot artificially ignore this fact and declare by fiat that it's not part of their punishment. Surely we wouldn't say that a prisoner with a two-year sentence is punished the same amount as a prisoner with a four-year sentence if we declare that we only intend to punish the latter prisoner on even days of the month.

Therefore, even though proportional punishment is trumpeted as central to modern criminal justice and may seem like an ideal goal, when looked at more closely, it has some very unappealing implications.